Brief of Appellant Utah Court of Appeals

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2000 Thurston v. Thurston : Brief of Appellant Utah Court of Appeals

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Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Ronald Thurston; Pro Se. Andrew B. Berry, Jr.; Attorney for Appellant.

Recommended Citation Brief of Appellant, Thurston v. Thurston, No. 20000228 (Utah Court of Appeals, 2000). https://digitalcommons.law.byu.edu/byu_ca2/2679

This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH COURT OF APPEALS ----ooOoo---- JENNIFER MELISSA THURSTON,

Petitioner and Appellant, Case Number 20000228-CA vs.

RONALD THURSTON, Priority Number 4

Respondent and Appellee.

----ooOoo----

BRIEF OF APPELLANT

APPEAL FROM THE FINAL ORDER TRANSFERRING JURISDICTION AND DISMISSAL BY THE SIXTH JUDICIAL DISTRICT COURT FOR THE COUNTY OF SANPETE WITHIN THE STATE OF UTAH THE HONORABLE LOUIS G. TERVORT PRESIDING

RONALD THURSTON ANDREW B. BERRY, JR. 0309 Pro Se for Appellee Attorney for Appellant 2340 NE 5th Street 62 West Main Street Salem, Oregon 97303 Moroni, Utah 84646-0600 Telephone: 541 994-3270 Telephone: 801 436-8200

ORAL ARGUMENT NOT REQUESTED FILED SEP 2 1 iuOO

COURT OF APPEALS IN 'rBE UTAH COURT OF APPEALS ----ooOoo---- JENNIFER MELISSA THURSTON,

Petitioner and Appellant, Case Number 20000228-CA vs.

RONALD THURSTON, Priority Number 4

Respondent and Appellee.

----ooOoo----

BRIEF OF APPELLANT

APPEAL FROM THE FINAL ORDER TRANSFERRING JURISDICTION AND DISMISSAL BY THE SIXTH JUDICIAL DISTRICT COURT FOR THE COUNTY OF SANPETE WITHIN THE STATE OF UTAH THE HONORABLE LOUIS G. TERVORT PRESIDING

ORAL ARGUMENT NO'r REQUES'l'ED TABL& OF CONTENTS Page

TABLE OF CONTENTS . . i

TABLE OF AUTHORITIES .. ii

STATEMENT OF JURISDICTION . 1

STATEMENT OF ISSUES PRESENTED FOR REVIEW .. 1

STANDARD OF REVIEW .. 3

STATEMENT OF THE CASE 3

STATEMENT OF THE FACTS .. 9

SUMMARY OF ARGUMENT . 21

ARGUMENT .... 24

THE OREGON COURT HAD NO JURISDICTION UNDER THE UCCJA...... 24

UTAH'S JURISDICTION UNDER THE UCCJA .. 27

THE PETITIONER'S RIGHT OF DUE PROCESS WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO PERMIT HER A HEARING TO PRESENT EVIDENCE ON THE FACTORS DETERMINING JURISDICTION ...... 38

THE FAILURE TO MAKE A RECORD OF THE CONVERSATION BETWEEN THE OREGON COURT AND THE UTAH COURT IS ERROR ...... 43 THE TRIAL COURT SHOULD HAVE MADE FINDINGS OF FACT AND CONCLUSIONS OF LAW ...... 47

CONCLUSION 49

ADDENDUM A. Appealed Order of February 22, 2000. B. Transcript of hearing on December 10, 1999. c. 1. Oregon UCCJA, ORS 109.701 et seq. 2. Utah UCCJA, U.C.A. 78-45c-3 et seq. D. Ronald Thurston's Oregon Petition for Dissolution filed March 20, 2000, in Lincoln County Circuit Court, case number 001309, Return of Service by Kimberly Dunham of May 3, 2000. Minutes of June 5, 2000, hearing. i TABLE- OF AUTHORITIES Page(s) CASES

Acton y. Deliran, 737 P.2d 396 (Utah 1987) ...... 49

Alloway v. Duncan, 996 P.2d 1010 (Or.App. 2000) .. 26,37

Bishop v. OB~C Consulting Engineers, 982 P.2d 25 (Or. 1999) ...... 27

Briggs y. Holcomb, 740 P.2d 281, 283 (UT App. 1987) ..•. 45,46

Crump v. Crump, 821 P.2d 1172 (UT App. 1991). ' • ' 4 3 Curtis v. Curti$, 789 P.2d 717 (UT App. 1990) 24,38,43

Holm y. Smilowitz, 840 P.2d 157 (UT App 1992) . . .. 3,23,24,34,35,43,46

Gribkoff v.Bedford, 711 P.2d 176, 178 (Or. 1985) ...... 27

Kelly v. Draney, 754 P.2d 92 (UT App. 1988) ..•..•... 49

Kinkella v. Baugh, 660 P.2d 233 (Utah 1982) ...•..... 32

Li$ka v. Li$ka, 902 P.2d 644 (UT App 1995} ...•..... 3,24,46 Murphy v. Price, 886 P.2d 1048 (Or. 1994) ...... 27

Paffel v. Paffel, 732 P.2d 96, 99 (Utah 1986} ....•. 35,42 Rupp v. Grantsville City, 610 P.2d 338,341 (Utah 1980) ... 42

State in Intere$t of D.S.K. v. Kasper, 792 P.2d 118 (UT App. 1990) ... • 22,24,45

Wi$COrnbe v. Wi$Combe, 744 P.2d 1024, 1025(Utah 1987) .... 42

Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ.App. 1981) .. 46

Yost y. Johnson, 591 A.2d 178 (Del. 1991) ... . 40,45

ii STA'fUTES AND RULES

Utah Code Annotated, Section 78-45c-3 et seq ...... 1,3,20,22,23,25,31,33,34,35,36,37,40,41,47,48,49

Or. Rev. Stat. 109.751 et seq ...... 22,25,26,36,37

Utah Code Annotated, Sections 78-22a-2(1), et seq. . . 35

Utah Code Annotated, Sections 78-56-1.1, . . . 46

STATEMENT OF JURISDICTION

Jurisdiction is conferred upon this Court by Utah Code

Ann., § 78-2a-3(2) (h), and by Rules 3 and 4, of the Utah Rules of

Appellate Procedure.

ISSUES PRESENTED FOR REVIEW

The Petitioner and Appellant, JENNIFER MELISSA THURSTON, request this Honorable Court consider upon this appeal the issues which follow:

a. Whether the Sixth Judicial District Court denied the due process rights of the Petitioner when it summarily deprived her of the right to a hearing and to present evidence? Preserved at R.

86; Tr. pp. 5-6, 9-10. b. Whether the Petitioner should have been permitted to present evidence upon the issues set forth in the UCCJA, at Section 78-45c-3, in order to determine whether the basis' of jurisdiction in this state exist? Preserved at R. 86-88; Tr. pp. 5-10.

c. Whether the Petitioner should have been permitted to present testimony and documentary evidence as to the home state of

1 the children, the best interest of the children, the significant connections the children and parents have with the State of Utah, and the lack of significant connections with the State of Oregon?

Preserved at R. 86-88; Tr. pp. 5-10.

d. Whether the Petitioner is entitled to present evidence, testimonial and documentary, upon emergencies, abuse and maltreatment of the children and the Petitioner by the Respondent?

Preserved at R. 86-88; Tr. pp. 8-9.

e. Whether the Petitioner should have been permitted to present evidence as to the children's present and future care, protection, training, and personal relationships? Preserved at R.

86-88. Tr. pp. 5-10.

f. Whether the Petitioner should have been permitted to present evidence that the State of Oregon was without jurisdiction over the children and the Petitioner? Preserved at R. 86-88; Tr. pp. 5-10.

g. Whether the Petitioner should have been permitted to present evidence that she had not been served with Oregon documents giving the State of Oregon jurisdiction, and that no Oregon divorce case had ever been filed? Preserved at R. 44, 86-88; Tr. pp. 5-10.

h. Whether a conversation by the trial court with a judicial officer of the State of Oregon should have been made upon the record or a contemporaneous record of the conversation with the trial court made? Preserved at R. 86-88; Tr. p. 7.

2 i. Should the trial court have made findings of fact and conclusions of law upon the issues set forth in the UCCJA, Utah Code Annotated, Sections 78-45c-3,4,5,6, and 7. Preserved at R. 86-

88; Tr. p. 8.

STANDARD OF REVIEW

The standard of review governing the determination of each of the issues presented upon this appeal, because no particular deference is given to the trial court's rulings on questions of law, is the correction of error standard. Liska y.

Liska, 902 P.2d 644 (UT App. 1995); Holm v. Smilowitz, 840 P.2d 157

(UT App. 19 92 ) .

STATEMENT OF THE CASE

On January 8, 1999, Jennifer Thurston and her children returned to Sterling, Utah from the State of Oregon. R. 44.

On March 24, 1999, the Sixth Judicial District Court issued an Ex Parte Protective Order granting custody of the parties children, Tricia and Christopher, to Jennifer Thurston, restraining

Ronald Thurston from removing the children from the State of Utah and restraining him from inflicting domestic violence and abuse upon Jennifer Thurston and her minor children, and ordering him to stay away from the children's schools and church in Sterling, Utah.

R.54-57.

On April 5, 1999, Ronald Thurston filed a Petition for

Restraining Order to Prevent Abuse under the Oregon Family Abuse

3 Prevention Act, case number 99-1558, before the Circuit Court of

Lincoln County, Oregon. This Petition has never been served upon

Jennifer Thurston. R. 83-84; Tr. pp. 6, 7.

On April 7, 1999, a hearing was held upon Jennifer

Thurston's Verified Petition for Protective Order in the Sixth

Judicial District Court for Sanpete County before the Honorable

David L. Mower. The morning of the hearing Mr. Thurston filed a response to Jennifer's Petition for a Protective Order. R. 58-66.

On April 7, 1999, the Utah District Court entered a Protective Order awarding custody of the children to Jennifer

Thurston, restraining Ronald Thurston from committing abuse or domestic violence against Jennifer Thurston and ordering him to stay away from the children's schools and church. R. 67-72.

On May 18, 1999, Mr. Thurston filed a Motion to Vacate

Protective Order requesting custody of the children. R.73-74.

On May 28, 1999, a hearing was held before the trial court in the protective order proceeding upon Mr. Thurston's Motion to Vacate Protective Order. R.75-78. Jennifer Thurston and her counsel, and Ronald Thurston appeared at the hearing, and presented argument. R. 78. Also, on May 28, 1999, Mr. Thurston had a document notorized in Ephraim, Utah, wherein he stated that he gives sole custody of the children to Jennifer Thurston. R. 77.

On June 11, 1999, in the Utah Protective Order proceeding the trial court entered an Order Upon Motion to Vacate Protective

4 Order. R.78-80. The order denied the motion to vacate Protective Order stating that Jennifer Thurston and the children were residents of Sanpete County, the court had exercised it's jurisdiciton to protect Jennifer and the children, and that Mr.

Thurston did not present any evidence to justify the court denying

Utah's jurisdiction or vacating the protective order, and reaffirmed the Protective Order entered April 7, 1999. R. 78-80.

On June 7, 1999, Ronald Thurston filed a Motion to Modify the Restraining Order in the Oregon Court, case number 99-1558, the case which had never been served upon Jennifer Thurston. R. 121. Although Ronald Thurston's original Petition and the motion to modify had not been served upon Jennifer Thurston, on

June 24, 1999, Jennifer Thurston made a special appearance in the spouse abuse proceeding in the Oregon Court and challenged the jurisdiction of the Oregon Court because she had not been served with the Respondent's Petition for Restraining Order to Prevent

Abuse under the Oregon Family Abuse Prevention Act, ORS 107.701, et seq., and as required by ORS 109.724, and 109.754. She also challenged the Oregon court's jurisdiction based upon the two prior custody orders entered in Utah. R. 121. The children were not present in Oregon at the time but had been living in Utah since January 8, 1999. R. 44.

On June 24, 1999, the Oregon judge pro tern, Frederick

Bennett, modified the unserved restraining order entered in that

5 court on April 5, 1999, to change custody of the children from Jennifer Thurston to Ronald Thurstion in violation of ORS 109.727.

The Oregon Court did not contact the Utah Court. The Oregon court ignored the fact that Jennifer Thurston had not been served Ronald

Thurston's original petition nor the motion to modify his original petition. The Oregon court did not take evidence upon the issues of the appropriate jurisdiction nor did it enter findings of fact and conclusions of law upon the question under the UCCJA. Tr. pp. 5-10.

On July 12, 1999, Jennifer Thurston filed a Verified

Petition for Divorce in the Sixth Judicial District Court for

Sanpete County within the State of Utah. R.1-7. On July 14, 1999,

Jennifer Thurston filed her Motion for Order to Show Cause,

Affidavit of Petitioner and thereupon the trial Court issued it's

Order to Show Cause, requesting, inter alia, custody of the part.ies minor children. R.S-21.

On August 5, 1999, an Acceptance of Service of Process executed by Ronald Thurston was filed with the trial court. R.22. On August 6, 1999, Ronald Thurston filed a pro se Answer to Verified Petition for Divorce. R.27-28. On August 6, 1999,

Ronald Thurston filed a Response to the Order to Show Cause. R.24-

25. Attached to the Response was an unauthenticated and uncertified copy of a Modification of Family Abuse Restraining

Order of the Oregon court dated June 25, 1999. R.26. This order was never and has never been served upon Jennifer Tr. pp. 5-10.

6 On August 13, 1999, a hearing was held upon Jennifer

Thurston's Motion for Order to Show Cause. Jennifer Thurston, Ronald Thurston and Kimberly Dunham testified at the hearing. Mr.

Thurston during the presentation of witnesses requested a continuance because he was having chest pains. R.29-31.

On August 16, 1999, the trial court sent a Notice of

Scheduling Conference to the parties setting the scheduling conference for September 3, 1999. R.32-33.

On September 3, 1999, a scheduling conference was held by the trial court which set the case for trial on November 4, 1999.

R.34. Ronald Thurston appeared by telephone. A Notice of Domestic

Trial was sent to Petitioner's counsel and Ronald Thurston, on

September 3, 1999. R.35-36.

On October 7, 1999, the Ronald Thurston filed his Respondent's Petition to Enforce Visitation. R.37-38.

Sometime during late October or early November of 1999, the Oregon court in the Oregon abuse restraining order proceeding contacted the Utah Court. The Utah trial court unilaterally cancelled the trial date without explanation to Jennifer Thurston.

There is nothing in the record indicating that this exparte conversation occurred, or when it occurred, or what was considered other than the trial court's declaration on December 10, 1999, that there had been such a conversation. R. 1-136, Tr. pp. 5-10.

On November 30, 1999, Jennifer Thurston filed her Motion

7 for Declaration of Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction Act. R.39-40. The motion was supported by the

Affidavit of Jennifer Thurston, which was accompanied by several attachments. R. 41-80. A Notice of Hearing Upon Jurisdiction was filed on November 30, 1999, scheduling a hearing in the trial court on the motion for December 10, 1999. R. 81-82.

On December 2, 1999, an unsigned, uncertified and unauthenticated copy of an Order of Consolidation from an Oregon

Court with the purported date of November 12, 1999, was filed in the trial court. The order did not bear any Oregon court filing stamp, certification nor authentication. R.83-84, 136.

On December 10, 1999, a hearing was held before the trial court upon Jennifer Thurston's Motion for Declaration of

Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction

Act. R. 85; R.137; Tr. 1-12.

On February 4, 2000, Ronald Thurston's counsel mailed a proposed Order to counsel for Jennifer Thurston. R. 89-91. On February 11, 2000, Jennifer Thurston mailed Objections to Proposed

Order. R. 86-88. The Utah trial court entered it's Order declaring that the state of Oregon has jurisdiction over the matter and issues and dismissed Jennifer Thurston's Verified Petition for Divorce on

February 22, 2000, in spite of and over the objections of Jennifer

Thurston. R. 89-91.

8 ll(.)l. --- ...... , conclusions of law supporting the Order. R. 89-94.

On March 14, 2000, Jennifer Thurston timely filed her

Notice of Appeal. P. 94-97.

Dissolution of Marriage in the Lincoln County Circuit Court for the

State of Oregon which has not been served upon Jennifer Thurston.

STATEMENT OF THE FACTS

:enn_;_l.e~ ~~•Jrston and Rona.1.-.... Ld..;rs:...on were marr.Le .... on the 28th day of January, 1983, in the County of Sanpete within the

State of Utah. R. 2, 42.

cr;_;_,Jren as js::;ue o: :_t;e~:::: mbrrlage a:

Lee, born the 6th day of August, 1983, Trischa Leighanne, born the

16th day of July, 1985, and Christopher Lyndon, a born the 5th day

for their entire lives in Sanpete Co~Lty within ~ne State of Utah.

Ronald Thurston has resided in Sanpete County within the State of

Utah for most of his entire life. R. 42.

"' .

Thurston, intending to retur~ · '~. d . f .o permanent J._ ·i reside ·,

Sanpete County, Utah, moved to Oregon because the Respondent was

9 offered temporary employment. Prior to moving to Oregon the family

lived at 251 South Main Street in Sterling, Utah. When the family moved to Oregon for the temporary work they did not move their

furniture, nor most of their clothing and personal effects. R. 42.

5. The children spent several months, during their stay

in Oregon, at their home in Sterling, Utah. R. 42.

6. In October, 1997, Jennifer Thurston and her children began packing their few things to return to Sterling, Utah. As

they were leaving Ronald Thurston attacked Jennifer physically and

injured her. He struck her with his fists in the and about her body. He kicked her several times. He threw her against the walls and onto the floor. He took her car keys from her and cut the brake lines on her car. Jennifer Thurston was physically forced by the Ronald Thurston to stay in Oregon against her will. R. 42.

7. Ron Thurston physically abused Jennifer on several occasions after this in order to compel her to submit to him. He would not allow the Petitioner and her children to return home to

Sterling, Utah, where they maintained their home, furniture and personal effects. He made her submit to him by inflicting regular physical abuse upon her. He struck and kicked her several times each week. He often beat her daily. R. 43.

8. Beginning in October, 1997, Ronald Thurston began druging Jennifer to keep her in Oregon with him. He refused to allow her to leave the rented house without him. He threatened to

10 Utah. He pointed a loaded hand aun at her, and put it in her rr s0veral occasions durina ~007

that .Ll sne tried to return home to ,::,L.erJ...Lily, uLctrr, 11e wuuJ..u )',.j_j_j_ her The Respondent choked Jennifer several times until she 1ost consciousness. arque with his new wife, Kimberly Dunham. Mr. Thurston has had two

(2', children with KlTI~er2 plurality. i·lL. Inurston hit t.he Petl tioneL .. LI1 the iace Wl U1 i1lS fists several times and blackened h()th ()f hPr P\JPC1..

Kimber1 y Dun han ' ~lckPrl Jennifer . n r bodv sE::Vel :::. lfnes leaving bru1ses all over her. K. 43-44.

9. On ,:ran11arv r. ~ ggg, Ronald Thurston struck the

tried to ston him from hittinq and injuring Trischa and he beqan

,_ t. c: father, Gerald Gibb, ana ner sister, Megan, who tooK Jennifer and

~h~1rl~~~ ~~ ~h-~~ h-~ TH- ~h D II II _l : '

10. On Marc.t1 l..:;, J..::.J'::J'::', the Ronalo lllu..Lstull threatened to kill the Jennifer on several occasions in Sterling, Utah, and threatened ~c take the childH''n from their home i::-1 3tcr1i;-,::;, "+-3t, l...v v.Lc'-Jva, vvuc.Lc ;:ce ~as living with Kimbe.r·ly Dunham and their two children. R. 44.

March 24, 1999, LIH::; Jerunfer appl...Led tc :.~1e Sixth Judicial District Court of Sanpete County for a Protective Order. The Court made findings that the Court had jurisdiction over the Jennifer and the children and that they had been physically abused, that domestic violence had occurred and thereupon issued a

Protective Order protecting the Petitioner and her children from the violence and abuse the Respondent was inflicting upon them. A copy of the Ex Parte Protective Order was attached to the

Petitioner's Affidavit in support of the motion for declaration of jurisdiction as Exhibit A. R. 44-45, 54-57.

12. On April 7, 1999, a hearing was held upon the

Jennifer's Petition for a Protective Order before the Sixth

Judicial District Court. At the hearing on April 7, 1999, the Mr.

Thurston appeared and submitted himself to the jurisdiction of the district court by filing a written response to the Verified

Petition for Protective Order. R. 58-67. In his response he consented to follow the orders of the Court and made affirmative requests for relief. R. 58-66. At this hearing the Court found that it had jurisdiction over Jennifer, Ronald and their children, that the Jennifer and the children had been physically abused by the Mr.

Thurston, and awarded Jennifer custody of the parties' children. R.

67-72. The Court also restrained Ronald Thurston from inflicting further abuse and violence upon Jennifer Thurston and the children. R. 67-72. A copy of the answer of Mr. Thurston was attached to the Petitioner's Affidavit in support of the motion for

12 declaration of jurisdiction as Exhibit B (R. 58-66), and a copy of

the Court's Protective Order was attached as Exhibit C. R. 67-72. 13. On May 18, 1999, Mr. Thurston filed a Motion to

Vacate Protective Order in the Sixth Judicial District Court and

his motion was heard on the 28th day of May, 1999. R. 45, 73-76.

Ronald Thurston personally appeared in court on that day asking for

affirmative relief. He asked the Court to award him custody of the

parties children. The Court found that Jennifer Thurston and the

children had been physically abused by Ron Thurston and that the

Court had exercised it's jurisdiction to protect Jennifer and the

children from him. The Court found that Ronald Thurston had not

presented any evidence whatsoever to justify denying jurisdiction

or otherwise vacate the Protective Order previously entered and

denied his requests to vacate the order and award him custody of

the children. A copy of the Order Upon Motion to Vacate Protective

Order was attached to the Jennifer Thurston's affidavit in support

of the motion as Exhibit D. R. 46.

14. On July 12, 1999, Jennifer Thurston filed a Verified Petition for Divorce in the Sixth Judicial District Court. No divorce proceeding was pending in Oregon, nor has a divorce proceeding ever been filed in Oregon. R. 46, Addendum D. On the

13th day of August, 1999, a hearing was held upon Jennifer

Thurston's Motion for Order to Show Cause. Mr. Thurston appeared personally at the hearing and made requests for affirmative relief,

13 including n request for custody of the parties' children. R. 46. He presented evidence and examined witnesses at this evidentiary hearing. The Utah Court ordered that Jennifer continue to have custody of the minor children. R. 29-31, 46.

15. Jennifer Thurston's children presently resided with her in their home at 251 South Main Street in Sterling, Utah, had have since January 8, 1999, and had for at least the eleven (11), months preceeding the hearing upon the Motion for Declaration of

Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction

Act. She and the children live with the children's maternal grandparents, Gerald Gibb and Nell Gibb. The children's aunts,

Megan Gibb and Eileen Christiansen, and the children's cousins, who lived with the children during this period and are witnesses in this proceeding. R. 47.

16. The children, Christopher and Trischa, are presently and have been enrolled in the Manti Elementary School and Manti High School. The children's teachers all reside and work in Sanpete County, Utah. Christopher's teachers are Dave Stevens,

Barbara Eliason, Dale Rice and Cindy Henningsen are teachers at Manti Elementary in Sanpete County, Utah. Brennan Jackson, Connie

Good, and James Peterson are teachers and the Vice Principal and

Principal at the Manti High School, in Manti, Utah. Christopher's scout leader is Arla Otten, who lives and works in Sanpete County,

Utah. These teachers are witnesses in this proceeding. R. 47.

14 17. The children's doctor is Von Pratt. Dr. Pratt

1 ' 1 -. r' 1 ,.... r r' ~:.~ .)...- ...... L \o--- ... ~

treated them continuously during their lives. The children had not

received a.ny medical treatment whatsoever lil Oregou. Ihese doctors

are witnesses in this proceeding. R_ 47-4R.

18. The children's dE::~ntists c·n·r-; Ernie Larsen,

Gunnison, Utah, and Dr . .Keeu UILlSt.en.seu, u.L .K__LCllL.Le__Lu, uLai1. u.L.

Larsen lives and practices dentistry ir1 Sanpete County,

Christensen lives and practices dentistry in Sevier County, Utah.

These dentis~s are wi~nesses i~ ~his proceeding. Dr. Lee Thurst0n,

p::o·\/.lCiL:G ael~L-.:3 ..... -.J __ ...... I...-_:_'------I

for their entire lives prior to treatment by Dr. Larsen and Dr.

Chr.Lstensen. .Lne cnl.Laren nave no aenLl5L5 lD uregon . .K. qo.

J9. 'T'rischa, was and is curne>ntJv in therapy with 21

Utah. Dr. Edgington is a witness in this proceeding. The cn.L__Lurert

: 3 .

20. Dianna Robbins and David Lindbloom, of the Division

Uldt Jennifer Thurston had abused her. children. They c::oncl_,-Jed tnat tne Mr. Tnurston's claims were contrived and unsubstantiated.

These w.Ltnesses work ana reside in Mant~,

21. The children are Latter Day Saints and their church

15 leaders and counselors reside in Sterling, Utah. The children's Bishop is Tim Denton, who lives and works in Sterling, Utah. The children's religious leaders have been their clergy for their entire lives. R. 48-49.

22. Jerry Jensen and Jessica Jensen are witnesses in this proceeding of the primary care of the children. R. 49.

23. Sheriff Claude Pickett, Lt. Rick Howe, Deputy Andy Lyons, and Deputy John Cox, all of the Sanpete County Sheriff's

Office are witnesses in this proceeding and all live and work in

Sanpete County, Utah. R. 49.

24. Megan Larsen, Zaccary Cox, Devan and Dusty McNiel are the children's best friends. These witnesses live and attend school in Sanpete County, Utah. R. 49.

25. Jennifer is and has been the primary caretaker of the children during the marriage. She performed all of the cleaning of the children's home. She performed all of the cooking for the children. She has been the person responsible for the feeding, clothing, bathing, education of the children. She has provided all of the medical and dental treatment for the children when they were in need of treatment. She has taken the children to church regularly each Sunday. The witnesses of these facts are those individuals named above. R. 49.

26. Jennifer's grandparents, Helen Gibb and Nell Miller, also live in Utah, and they witnesses in this proceeding. Her aunt

16 1r:•n's dunL and uncle, Christina and i'\lfr.:-

Querido are witnesses 1 r1 this action and resioe l_ll .:>p.r 111y v .L.L.Le,

27 Ronald Thurston's parent and the rhi1rlrpnfq n~tPrn~l

.,.., Helen res2.a.es --C.""I'.

witness in this proceedina. R. 50.

ave any relat_ves

from his family who reside in the State ot Oregon. His relatives

reside in Utat, ard Cc1ifornia.

who have relevant ana rnater:la.L Know.Leuge o1. wtl.LCil u1ey mdy Le~Lj_ly

in this proceeding. n

1 G G'l

extramarital sexual affair Wltl:t L.i.3 girlfrienG., .t~ .... m Dunham. he and

Kim Dunham have h~d ~wn I?\_ rhilrlrPn

Jer,nifer be wife, Kimberlv Dunham. R. 51.

30~ Rona :La hurston Kimberly Dunham engage ~ ;-; ::,nd have exposea tne cn11aren to lnJurlous nenavlours. ~- ~1.

31. Mr. Thurston and Kimberly Dunham have physically and

Cll1U \-llt::; tr.1.a.1. v0Urt entered a P rotectl ve Orde.r p.turalJ..L L.1.119 abuse against UH:.; ver,n_;_.r..er

~nrl thP rhilrlrPn hv Mr_ Thurston and awarded her thP sole rustody of ~_rtE! children, lrl::<<. :cJ and ':hristopher on Apr"" ~"l case nurr~er 994600040. R. 51-52, 67-74.

1 '7 32. The Office of Recovery Services for the State of Utah has assessed and is trying to collect child support for the children. Jennifer provides a safe, noncombative, nonabusive, drug and alcohol free environment for the children who are in need of the stability and guidance which she can provide to them. The children desire to live with their mother at their home in

Sterling, Utah. R. 52.

33. Mr. Thurston lied in his Petition for Restraining

Order to Prevent Abuse in Oregon, case number 991558, at question

8B, when he asserted that there was not another restraining order pending between Jennifer and him, nor another case concerning custody pending in any other state. At the time he had been served with an order of custody, the Exparte Protective Order, from the

Sixth Judicial District Court of Sanpete County, Utah, and he was aware of the case in Utah. He lied in his Oregon Petition when he stated the children were living with him in Oregon, when in fact the children were physically living with Jennifer in Sterling, Utah. Jennifer Thurston was not served with Mr. Thurston's Oregon

Petition for Protective Order. R. 52-53.

34. On July 12, 1999, Jennifer Thurston filed a Verified

Petition for Divorce in the Sixth Judicial District Court for

Sanpete County, Utah, and Mr. Thurston answered the petition requesting affirmative relief. No petition for divorce had been filed in the State of Oregon at the time. R. 1-7.

18 er;rLi fer. 1J1UI.::; Lur1 f lled !IE:::! I.

Child Custody Jurisdiction Act. R. 39-40, 41-82.

36. Jennifer appeared at the hearing on the motion on

December 10, 1999, with her witnesses prepared to present evidence of the question of jurisdiction and the best interest of the children. Mr. Thurston did not appear at the hearing but was represented by his counsel, Lawrence Hunt. No witnesses appeared at the hearing on behalf of Mr. Thurston. No divorce proceeding had been filed, nor has been filed, in the State of Oregon. R. 85,

86-88, Tr. pp. 5-10.

~ou~t declared tha: ,j ~3 c ken ·,v :i t ~ a r. f f ice r c :: the em r ~

-, tria~ co;_rt

evidence, declared Oregon the 4arisdictior summarily disrrcis:=E~d

3 r . nrucJ r :' sut>wltted. e: r .LJ1Ul1H:J.

Law were not submitted with the proposed Order. R. 89-91.

39. On February 11, 2000, Jennifer filed her Objections to Proposed Order. The objections stated that the trial Court, in order to determine whether the bases of jurisdiction in this state

19 exist must receive evidence upon the issues which are set forth ih the UCCJA, at section 78-45c-3. The objections stated that Jennifer appeared on December 10, 1999, intending to call several witnesses to offer testimony upon the basis of jurisdiction including the home state of the children at the time of the commencement of the proceeding, the best interests of the children, and the significant connections the children and parents have with the State of Utah, and the lack of significant connections the children and the parties have with the State of Oregon. She objected that she had present in court several witnesses who would have testified as to the children's present and future care, protection, training, and personal relationships. Jennifer would have proved that the State of Oregon was without jurisdiction pursuant to the UCCJA, and other facts showing that she had not been served Oregon documents giving Oregon jurisdiction, and that no Oregon divorce case had ever been filed. R. 86-88. Addendum D. Jennifer Thurston objected that any conversation with a purported judicial officer of the State of Oregon should have been made upon the record and a contemporaneous record of the conversation with the trial court made. R. 86-88.

Jennifer Thurston objected that she should have been given the opportunity to be heard and present witnesses and other evidence pursuant to UCCJA, sections 78-45c-3, 4, 5, 6 and 7, and findings of fact should have been made. She objected that findings

20 of fact should have been made on the factors in determining the most convenient forum, the best interests of the children, the home state, Mr. Thurston's misconduct, costs and other material factors in determining which state has jurisdiction. R. 86-88. 40. The trial Court entered the Respondent's proposed

Order on February 22, 2000, despite Jennifer's Objections and without allowing her to present her witnesses and evidence and without first making findings of fact and conclusions of law. R.

89-91.

41. Jennifer Thurston filed her Notice of Appeal on

March 14, 2000. R. 94-96.

42. Ronald Thurston file his Petition for Dissolution of

Marriage, case number 001309, in the Lincoln County Circuit Court of Oregon on March 20, 2000. Addendum D. The Proof of Service indicates that Mr. Thurston's Oregon Petition for Dissolution of

Marriage was served on Jennifer Thurston on May 3, 2000, by

Kimberly Dunham, with whom Mr. Thruston lives and has two children.

SUMMARY OF ARGUMENT The Utah Ex Parte Protective Order and the Protective

Order issued by the Utah Court on March 24, 1999, and April 7, 1999, and the ex parte Restraining Order to Prevent Abuse issued by the Oregon Court on April 5, 1999, both issued temporarily to protect Jennifer Thurston and her children from abuse by Ronald

Thurston and awarding custody of the children to Jennifer Thurston,

21 are not determinative of which court ultimately determines the question of the custody of the children in a divorce action pursuant to the UCCJA.

An assumption of emergency jurisdiction is an assumption of temporary jurisdiction only. It does not confer upon a state the authority to make a permanent custody disposition. State in

Interest of D.S.K., 792 P.2d 118 (UT App. 1990). The Oregon court could not have taken jurisdiction under the emergency provision of the UCCJA, ORS 109.751(1) (1999). The children were not physically present in Oregon.

The Oregon Court did not contact the Utah Court. The

Oregon court ignored the fact that Jennifer Thurston had not been served Ronald Thurston's original petition nor the motion to modify his original petition. The Oregon court, in it's temporary abuse proceeding, did not take evidence upon the issues of the appropriate jurisdiction nor did it enter findings of fact and conclusions of law upon the question under the UCCJA.

The Utah District Court erroneously concluded that it did not have jurisdiction in this case. The purpose of the UCCJA, as codified in Utah at Utah Code Ann. Sections 78-45c-1 through

26(1992), is to direct when jurisdiction shall be exercised. Utah had jurisdiction under U.C.A. Section 78-45c-3. Addendum C.

The Utah District Court had jurisdiction under the UCCJA, in the case at bar, because the children are physically present in

22 Utah and abuse had occurred, Utah is the home state of the children, the best interest of the children is that Utah assume jurisdiction, the children and parents have significant connections with Utah and substantial evidence concerning their care,

protection, training, and relationships is present in Utah, and no other state would have jurisdiction under the provisions of the

UCCJA, and did not exercise jurisdiction substantially in conformity with the act. U.C.A. 78-45c-3. No divorce case had been

filed in Oregon. R. 86-88, Tr. pp. 5-10, Addendum D. On December 10, 1999, when the trial court refused to permit the Petitioner to offer evidence and witnesses regarding the basis of jurisdiction in Utah, and the lack of jurisdiction in

Oregon, it violated the Petitioner's rights of due process. Holm v.

Smilowitz, 840 P.2d 157 (UT App. 1992).

A verbatim record of the communication should have been made and Jennifer Thurston should have been permitted notice of the proceeding and been permitted to participate in the matter. Holm v. Smilowitz, 840 P.2d 157 (UT App. 1992); Yost v. Johnson, 591 A.2d

1 7 8 ( Del. 19 91 ) .

The trial court should have made findings of fact and conclusions of law upon all material issues and the failure to so make such findings of fact is reversible error and requires remand.

Kinkella y, Baugh, 660 P.2d 233 (Utah 1983); Rules 41 (b), and

52(a), of the Utah Rules of Civil Procedure.

23 THE OREGON COURT BAD NO JURISDICTION ONDER THE UCCJA

The standard of review upon the determination of jurisdiction is a question of law and the appellate court does not defer to the district court but employs a correction of error standard. Liska v. Liska, 902 P.2d 644 (UT App. 1995); Holm v. Smilowitz, 840 P.2d 157 (UT App. 1992).

The Utah Ex Parte Protective Order and the Protective

Order issued by the Utah Court on March 24, 1999, and April 7,

1999, and the Restraining Order to Prevent Abuse issued by the

Oregon Court on April 5, 1999, both issued temporarily to protect

Jennifer Thurston and her children from abuse by Ronald Thurston and awarding custody of the children to Jennifer Thurston, are not determinative of which court ultimately determines the question of the custody of the children in a divorce action pursuant to the

UCCJA.

An assumption of emergency jurisdiction is an assumption of temporary jurisdiction only. It does not confer upon a state the authority to make a permanent custody disposition. State in

Interest of D.S.K., 792 P.2d 118 (UT App. 1990). A temporary order, either in the Utah abuse proceeding or in the Oregon abuse proceeding, should continue only as long as necessary to determine which state should make an initial custody determination. Curtis v.

Curtis, 789 P.2d 717 (UT App. 1990).

Jennifer Thurston and her children returned to their

24 family home in Sterling, Utah, on January 8, 1999. She and her children have resided continuously in Sterling, Utah, since that day, have attended their schools, treated by their doctors and dentists, attended church, obtained counseling for abuse, and are residing in Sterling, Utah, today.

On June 7, 1999, Ronald Thurston filed a Motion to Modify the Restraining Order in the Oregon Court, case number 99-1558, the case which had never been served upon Jennifer Thurston.

Although Ronald Thurston's original Petition and the motion to modify the temporary abuse custody order had not been served upon her, on June 24, 1999, Jennifer Thurston made a special appearance in the spouse abuse proceeding in the Oregon Court and challenged the jurisdiction of the Oregon Court because she had not been served with the Petition for Restraining Order to Prevent

Abuse under the Oregon Family Abuse Prevention Act nor Mr.

Thurston's motion to modify his Oregon temporary order to change custody of the children from Jennifer to him. She also challenged the Oregon court's jurisdiction based upon the two prior custody orders entered in Utah. The Oregon court could not have taken jurisdiction under the emergency provision of the UCCJA, ORS

109.751 (1) (1999) Addendum C 1, (the provision is substantively identical to U.C.A., section 78-45c-3(1)(c)), which would have allowed Oregon to take emergency jurisdiction if:

(c)) The child is physically present in this state and(i) the child has been abondoned or (ii) it is necessary in an

25 ~mergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent. (Emphasis added.) The children were not present in Oregon but were physically present and had been living exclusively in Utah with their mother since January 8, 1999.

On June 24, 1999, the Oregon judge pro tern, Frederick

Bennett, modified Mr. Thurston's unserved restraining order entered in that court on April 5, 1999, to change custody of the children from Jennifer Thurston to Ronald Thurstion, even though the children were not physically present in Oregon, and in violation of

ORS 109.751(4) (1999), requiring immediate communication with the

Utah court which entered a prior custody order under the UCCJA. The Oregon court could not exercise jurisdiction under ORS 109.757, because Utah had a prior domestic abuse action. Addendum C 1.

The Oregon Court did not contact the Utah Court. The

In Alloway y. Duncan, 996 P.2d 1010 (Or.App. 2000), the

Court of Appeals of Oregon held that a, "Summons must be served on the defending party pursuant to ORCP 7 D, in order for the trial

26 court to acquire personal- jurisdiction." The Oregon appellate court further held that, "By force of that authority, personal service of an order entered after an action has been commenced was not a substitute for service of summons in connection with father's original petition for custody as a means to acquire personal jurisdiction over mother." Id. at 1012.

The Court of Appeals of Oregon has repeatedly held that the right to receive adequate service of a summons is a

"substantial right," Bishop v. OBEC Consulting Engineers, 982 P.2d 25 (1999), and that actual notice of the pendency of an action is insufficient to excuse noncompliance with ORCP 7. Mut:phy y. Price,

886 P.2d 1047 (1994), rev. den. 894 P.2d 468 (1995). The Oregon court did not make findings that there was a compelling emergency that justifies the extraordinary relief granted by the emergency provision of the UCCJA. See, e.g., Gribkoff v. Bedford, 711 P.2d 176, 178 (Or. 1985).

UTAH' S JURISDICTION ONDER THE UCCJA

On July 12, 1999, Jennifer Melissa Thurston filed a Verified Petition for Divorce in the Sixth Judicial District Court for Sanpete County within the State of Utah. R.l-7. On July 14, 1999, Jennifer Thurston filed her Motion for Order to Show Cause,

Affidavit of Petitioner and thereupon the trial Court issued it's

Order to Show Cause, requesting, inter alia, custody of the parties minor children. R.8-21. Jennifer Thurston and her children had

27 been residing in Sterling, Utah, for over six (6), months immediately preceding the filing of the divorce petition.

On August 6, 1999, Ronald Thurston filed a pro se Answer to Verified Petition for Divorce. R.27-28. On August 6, 1999,

Ronald Thurston filed a Response to the Order to Show Cause. R.24-

25. Attached was an unauthenticated and uncertified copy of a

Modification of Family Abuse Restraining Order of the Oregon Court dated June 25, 1999. R.26. This order was never and has never been served upon Jennifer Thurston, nor has Mr. Thurston's original petition and motion for modification.

On September 3, 1999, a scheduling conference was held by the trial court, both Mr. Thurston and counsel for Jennifer

Thurston appeared, and the Utah divorce action was set for trial on

November 4, 1999. R.34, 35-36.

On October 7, 1999, the Ronald Thurston filed, via fascimile, his Petition to Enforce Visitation. R.37-38.

Thurston. There is nothing in the record indicating that this exparte conversation occurred, or when it occurred, or the facts and issues were considered, other than the trial court's declaration on December 10, 1999, that there had been such a

28 conversation. Tr. PP. 5-10. On November 30, 1999, Jennifer Thurston filed her Motion for Declaration of Jurisdiction Pursuant to the Uniform Child

Custody Jurisdiction Act. R.39-40. The motion was supported by the Affidavit of Jennifer Thurston. R. 41-80. The Affidavit asserted that Jennifer Thurston and her children had lived in Utah since

January 8, 1999, that Ronald Thurston had physically abused Jennifer Thurston and forced her to remain in Oregon by beatings and druggings. R. 41-44. It asserted that Utah had exercised jurisdiction in a Protective Order proceeding which awarded

Jennifer custody of the children. The affidavit asserted that

Ronald Thurston had submitted himself to the jurisdiction of the court by his affirmative requests for relief. R. 46. The affidavit identified the children's teachers, doctors, dentists, counselors, clergy, Utah child protective service workers, law enforcement officers and other witnesses who reside in Utah and who would offer evidence upon the issues of the children's present and future care, protection, training, and personal relationships. R. 47-50. The Affidavit of Jennifer Thurston identified facts concerning the best interests of the children, including their primary care and that Ronald Thurston had physically abused Jennifer Thurston and the children, and was living with Kimberly Dunham, with whom he had two

(2), other children. R. 49-52. The affidavit asserted Mr.

Thurston's misconduct by his misrepresentations in the cases R. 52.

29 On December 2, 1999, an unsigned, uncertified and unauthenticated copy of an Order of Consolidation from an Oregon Court with the purported date of November 12, 1999, was filed in the trial Court. The order did not bear any Oregon court filing stamp, certification nor authentication. R.83-84.

On December 10, 1999, a hearing was held before the trial court upon Jennifer Thurston's Motion for Declaration of Jurisdiction Pursuant to the Uniform Child Custody Jurisdiction

Act. R. 85; R.137; Tr. 1-12. Jennifer Thurston and her children had resided continuously in Sterling, Utah, for eleven (11), months on December 10, 1999.

Mr. Thurston was not present at the hearing but was represented by his counsel, Mr. Hunt. Tr. p.5. Jennifer Thurston's counsel asserted that Jennifer Thurston had not been served any such order and that under the UCCJA, she is entitled to present evidence as to the jurisdictional questions, the home state of the children and the best interest of the children. Tr. p. 5-6. She asserted that several witnesses were present prepared to offer evidence on the jurisdictional question, and that the court should consider the best interests of the children. R. 85; Tr. p.5. The

Utah divorce court then stated that he had been in contact with the judge in Oregon by phone and after due conversation with him the conclusion was reached that the appropriate jurisdiction was the state of Oregon. R. 85; Tr. p. 6.

30 Jennifer Thurston asserted that she had not been served with any documents or motions at all out of Oregon and that she is entitled to be heard and present evidence on the question of

jurisdiction. Tr. p. 7, 9-10. She also asserted that a record

should be made of any conversation with the Oregon court. Tr. p. 7.

Jennifer Thurston's counsel asserted that the trial court

must make specific findings as to the facts that support jurisdiction. Tr. p.8. Jennifer Thurston's counsel asserted that

the children had lived in Utah for nearly one (1), year and that

the first time the jurisdictional issue was raised was by Jennifer

Thurston with the present motion. Tr. p. 8.

Jennifer Thurston's counsel asserted that there was no

divorce proceeding pending in Oregon whatsoever. Tr. p. 8.

On February 4, 2000, Ronald Thurston's counsel mailed a

proposed Order to counsel for Jennifer Thurston. R. 89-91. On

February 11, 2000, Jennifer Thurston mailed Objections to Proposed

Order. R. 86-88. She asserted that the trial court must receive evidence upon the issues which are set forth in the UCCJA, at section 78-45c-3, 4, 5, 6, and 7, and that she had appeared at the

hearing with several witnesses to offer testimony upon the basis of

jurisdiction in Utah, care, training, protection and personal

relationships, the significant connections the children and parents have with Utah, and the lack of connections the children and the parents have with Oregon, and the physical presence of the children

31 in Utah. R. 86, 87, 88. She objected that she would have presented

evidence that Oregon was without jurisdiction pursuant to the

UCCJA, and that she had not been served with documents giving

Oregon jurisdiction, and that no Oregon divorce case had even been

filed. R. 87. Addendum D.

Jennifer Thurston objected that any conversation with an

Oregon judicial officer should have been made upon the record and that a contemporaneous record of the conversation with the trial court made. R. 87.

Jennifer Thurston objected that the trial court had not made findings of fact and that findings should be made on the factors determining the most convenient forum, and costs, and upon

Ronald Thurston's misconduct. R. 87.

The Utah trial court entered it's Order declaring that the state of Oregon has jurisdiction over the matter and issues and dismissed Jennifer Thurston's Verified Petition for Divorce on February 22, 2000, in spite of and over the objections of Jennifer Thurston. R. 89-91.

The trial court did not enter findings of fact, nor conclusions of law supporting the Order. R. 89-94.

On March 20, 2000, Ronald Thurston filed a Petition for

Dissolution of Marriage in the Lincoln County Circuit Court for the

State of Oregon which had not been served upon Jennifer Thurston.

R. 117; Addendum D.

32 The Utah District Court erroneously concluded that it did

not have jurisdiction in this case. The purpose of the UCCJA, as codified in Utah at Utah Code Ann. Sections 78-45c-1 through

26(1992), is to direct when jurisdiction shall be exercised. Utah had jurisdiction under U.C.A. Section 78-45c-3. Addendum C.

The Utah District Court had jurisdiction under the UCCJA,

in the case at bar, because Jennifer Thurston and the children had

resided continuously in Utah since January 8, 1999, a period in excess of six (6), months prior to the commencement of the divorce action on July 12, 1999. U.C.A. 78-45c-3(1} (a} (i}. The children had continuously in Utah at the time of the commencement of the divorce proceeding and thus, the "home state" jurisdictional basis had been met. R. 1, 44.

The Utah trial court also had jurisdiction under subsection (b), of U.C.A. 78-45c-3, because it is in the best interest of the children that the Utah court assume jurisdiction because the children and their parents, Jennifer Thurston and

Ronald Thurston, have a significant connection with Utah, and there is available in Utah substantial evidence concerning the children's present or future care, protection, training, and personal relationships. The significant connections and substantial evidence concerning the children's present and future care, protection, training and personal relationships was shown by

Jennifer Thurston's Affidavit in support of her motion for

33 declaration of jurisdiction. R. 41-80. Thirdly, the Utah court had jurisdiction under subsection

(c), of U.C.A. 78-45c-3, because the Thurston children were physically present in Utah, and it was necessary in an emergency to protect the children because they had been subjected to or threatened with mistreatment or abuse or were otherewise neglected or dependent. R. 54-57. The Utah District Court had entered an Ex Parte Protective Order in case number 994600040, restraining Ronald

Thurston from attemmpting, committing or threatening domestic violence and abuse against the children, ordered him to stay away from the children's home, schools and church in Sterling, Utah, and had prohibited him from removing the children from the state of

Utah. R. 54-57.

Lastly, based upon the record before the trial court on

December 10, 1999, and on February 22, 2000, it appeared that no other state would have jurisdiction under prerequisites substantially in accordance with subsections (a), (b), or (c), and it was in the best interest of the children that Utah assume jurisdiction. Holm v. Smilowitz, 840 P.2d 157 (UT App. 1992).

Clearly, the Utah court had jurisdiction under the UCCJA, section 78-45c-3. While the court may have eventually declined to exercise jurisdiction, it was error to do so without permitting

Jennifer Thurston a hearing as to Utah's jurisdiction and Oregon's lack of jurisdiction. Jennifer Thurston asserted that she had not

34 been served Oregon process and she should have been permitted to present her proof of failure of service under UCCJA, section 78- 45c-5. A foreign judgment entered without jurisdiction and without proper service of process is void and need not be accorded full faith and credit. See, Paffel v. Paffel, 732 P.2d 96, 99 (Utah

1986). Moreover, U.C.A. Section 78-45c-4, provides that prior to making a decree under the UCCJA, reasonable notice and opportunity to be heard shall be given to the contestants. On December 10, 1999, at the time of the hearing on the motion for declaration of jurisdiction, the only Oregon court document the trial court had before it was the Order of

Consolidation filed in the trial court on December 2, 1999. R. 83-

84. This purported order did not make findings as to the jurisdictional prerequisites of sections 78-45c-3, 4, 5, 6, or 7.

This purported order was unsigned, uncertified~ unauthenticated and not domesticated by it's filing under the Utah Foreign Judgment

Act, U.C.A. Section 78-22a-2(1) (1992). R. 136. Holm v. Smilowitz, 840 P.2d 157 (UT App. 1992). Moreover, on December 10, 1999, the date of the hearing on Jennifer Thurston's motion pursuant to the UCCJA, and on

February 22, 2000, the date of the court's Order transferring jurisdiction to Oregon and dismissing Jennifer Thurston's divorce petition, there was no divorce proceeding pending in the state of

Oregon. R. 46, 87; Tr. p. 8; Addendum D.

35 The Utah court in this divorce action cannot transfer

jurisdiction to the Oregon temporary restraining order to prevent

abuse action, to make an ultimate determination of custody of the

Thurston children when no dissolution proceeding was pending in

Oregon. The only dissolution action pending in either state was in

Jennifer Thurston's Verified Petition for Divorce in the Sixth

Judicial District Court which was filed at the time when the

Jennifer Thurston and her children had been in Utah for in excess of six (6), months. Utah was the home state of the children at the time of the commencement of the divorce action in Utah.

U.C.A. Section 78-45c-6(1), directs that,

(1) A court of this state shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning custody of the child was pending in a court of another state exercJsJng jurisdiction substantially in conformity with this act .... {Emphasis added.)

Utah was the home state of the children at the time of the commencement of the proceeding in Utah since the children had lived in Sterling, Utah, for a period of in excess of six (6), consecutive months. Thus, Oregon could not assert jurisdiction under ORS 109.74l{l){a), it's "home state" provision which is identical to U.C.A. 78-45c-3(1) (a).

Similarly, the Oregon court could not exercise jurisdiction based upon the record in the trial court under ORS

109.741{1) (b), substantially identical to U.C.A. 78-45c-3(1) (b).

There was no showing in the trial court that it was in the best

36 interest of the children that Oregon assume jurisdiction because the children and parents have a significant connection with Oregon, and that there is available in Oregon substantial evidence concerning the children's present or future care, protection, training, and personal relationships. The only evidence of the children's best interest and evidence concerning their care, protection, training and personal relationships in the trial court was that of Jennifer Thurston in her affidavit in support of her motion to declare Utah the jurisdiction to determine custody. R.

39-60.

Moreover, Oregon was not exercising jurisdiction substantially in conformity with the UCCJA. Jennifer Thurston had not been served any petition, nor order, from an Oregon court in the temporary restraining order proceeding of Ronald Thurston.

This failure of service of process was violative of UCCJA, Sections

78-45c-4, and 78-45c-5, and ORS 109.724, and 109.754.

In Alloway v. Duncan, 996 P.2d 1010 (Or.App. 2000), the

Court of Appeals of Oregon held that a, "Summons must be served on the defending party pursuant to ORCP 7 D, in order for the trial court to acquire personal jurisdiction,"... and, " ... personal service of an order entered after an action has been commenced was not a substitute for service of summons in connection with father's original petition for custody as a means to acquire personal jurisdiction over mother." Id. at 1012.

37 In order to entertain a dispute a court must have jurisdiction over both the subject matter of the dispute and the individuals involved. If a court lacks either type of jurisdiction

it has no power to entertain the suit. Curtis v. Curtis, 789 P.2d

717 (UT App. 1990). Oregon had not exercised jurisdiction substantially in conformity with the UCCJA, because Jennifer

Thurston had not been served with any Oregon petitions or orders.

The Utah trial court, should have taken jurisdiction of the custody determination because no other action for dissolution of the marriage and concerning the custody of the children was pending in another state on December 10, 1000, and on February 22, 2000, the date of entry of the Order declaring that Oregon had jurisdiction and dismissing Jennifer Thurston's divorce petition. Ronald

Thurston did not filed his Petition for Dissolution in the Oregon court until March 20, 2000. Addendum D.

THE PETITIONER' S RIGHT OF DUE PROCESS WAS VIOLATED BY THE TRIAL COURT' S FAILURE TO PERMIT HER A BEAlUNG TO PRESENT EVIDENCE ON THE FACTORS DETERMIN:ING JORISDICTION

Jennifer Thurston's right of due process was violated by the trial court's failure to permit her a hearing to present evidence on the factors determining jurisdiction.

On July 12, 1999, the Jennifer Thurston filed her

Verified Petition for Divorce in the Sixth Judicial District Court for Sanpete County within the State of Utah, and Ronald Thurston answered the petition requesting affirmative relief. No petition

38 for divorce had been filed in the State of Oregon at the time. R.

86-88; Addendum D. On November 30, 1999, the Jennifer Thurston filed her

Motion for Declaration of Jurisdiction Pursuant to the Uniform

Child Custody Jurisdiction Act. The motion was supported by the

Affidavit of Jennifer Thurston.

Jennifer Thurston appeared at the hearing on the motion

on December 10, 1999, with her witnesses prepared to present

evidence of the question of jurisdiction and the best interest of the children. Ronald Thurston did not appear at the hearing but

was represented by his counsel, Lawrence Hunt. No witnesses

appeared at the hearing on behalf of Mr. Thurston. No divorce

proceeding had been filed in the State of Oregon. Mr. Thurston's

Petition for Dissolution was filed in the Lincoln County Circuit

Court in Oregon on March 20, 2000. Addendum D.

Jennifer Thurston attempted to call witnesses. The trial

Court declared that it had spoken with an officer of the Court of the State of Oregon. Tr. pp. 5-10. No record had been made of the conversation between the Utah Court and the Oregon Court. R. 1-136. The trial Court refused to allow Jennifer Thurston to present witnesses and evidence, declared that Oregon had jurisdiction and

summarily dismissed Jennifer Thurston's divorce action. R. 89-91.

On February 4, 2000, the Respondent's counsel submitted

a proposed Order. R. 89-91. Findings of Fact and Conclusions of

39 Law were not submitted with the proposed Order nor entered by the trial court. R. 1-136.

On February 11, 2000, Jennifer Thurston filed her

Objections to Proposed Order. R. 86. The objections stated that

the trial Court, in order to determine whether the bases of

jurisdiction in this state exist must receive evidence upon the

issues which are set forth in the UCCJA, at section 78-45c-3. R. 86-88.

Jennifer Thurston had appeared at the hearing on December

10, 1999, intending to call several witnesses to offer testimony upon the basis of jurisdiction including the home state of the children at the time of the commencement of the proceeding, the best interests of the children, and the significant connections the children and parents have with the State of Utah, and the lack of significant connections the children and the parties have with the

State of Oregon. She was prepared to offer witnesses and testimony that the children were physically present in this state and the facts showing emergencies, abuse and maltreatment of the children and the Petitioner by Ronald Thurston. Jennifer Thurston had present in court several witnesses who would have testified as to the children's present and future care, protection, training, and personal relationships. She would have proved that Oregon was without jurisdiction pursuant to the UCCJA, and other facts showing that she had not been served Oregon documents giving Oregon

40 jurisdiction, and that no Oregon divorce case had ever been filed.

R. 86-88. She objected that the trial court had jurisdiction over the parties and could not dismiss the divorce action because the she and the children had been residents of Sanpete County within the State of Utah for over six (6}, months at the time the divorce proceeding was filed and that no divorce proceeding was pending in

Oregon. R. 86-88.

Jennifer Thurston objected that she should have been given the opportunity to be heard and present witnesses and other evidence pursuant to UCCJA, sections 78-45c-4 and 5, and findings of fact should have been made. R. 86-88. She objected that findings of fact should have been made on the factors in determining the most convenient forum, the best interests of the children, the horne state, the Respondent's misconduct, costs and other material factors in determining which state has jurisdiction.

R. 86-88.

The trial Court executed and entered the Respondent's proposed Order on February 22, 2000, despite the Petitioner's objections and without allowing the Petitioner to present her witnesses and evidence and without first making findings of fact and conclusions of law. R. 89-91.

"The demands of due process rest on the concept of basic fairness of procedure and demand a procedure appropriate to the

41 case and just to the parties involved." Wiscombe v .. Wiscoffibe, 7 4·4 P.2d 1024, 1025 (Utah App. 1987) (quoting Rupp v. Grantsville City,

610 P.2d 338, 341 (Utah 1980)). ~one of the fundamental requisites of due process is the opportunity to be fully heard."

A foreign judgment rendered without jurisdiction over the

Petitioner, and without proper service of process should not be accorded full faith nor credit in Utah. Paffel v. Paffel, 732 P.2d

96, 99 (Utah 1986) . The Petitioner, if permitted a hearing upon

jurisdiction, would have proved that she had never been served with

Oregon process and that no divorce petition had been filed or was pending in the State of Oregon on December 10, 1999, nor on

February 22, 2000, nor on March 14, 2000. R. 89, 95, 134, 136.

Ronald Thurston's divorce action was filed in the Lincoln

County Circuit Court, in Oregon on March 20, 2000, as case number

001309. See, Addendum D (Ronald Thurston's Petition for Dissolution of Marriage) . The Utah trial court could not, on December 10, 1999, nor on February 22, 2000, transfer jurisdiction over the divorce and custody pxoceeding to a non-existent dissolution proceeding in Oregon. If the trial court had permitted Jennifer Thurston to call witnesses and present evidence she would have called the witnesses named in her affidavit filed in support of her motion and these witnesses would have testifed as to the facts supporting the jurisdictional basis' in Utah. Ronald Thurston was not present at

42 the hearing personally, but appeared by his counsel. No witnesses were present on behalf of Mr. Thurston and the facts which would have been produced by Jennifer Thurston, as set forth in her

affidavit in support of the motion, were uncontroverted.

On December 10, 1999, when the trial court refused to

permit the Petitioner to offer evidence and witnesses regarding the

basis of jurisdiction in Utah, and the lack of jurisdiction in

Oregon, it violated the Petitioner's rights of due process. Holm v.

Smilowitz, 840 P.2d 157 (Utah App. 1992}. Jennifer Thurston challenges, and challenged below, the

jurisdiction of the State of Oregon over her and the children. She

has challenged Oregon's in personam jurisdiction and Oregon's

subject matter jurisdiction. Curtis v. Curtis, 789 P.2d 717 (UT

App. 1990}. She should be permitted to present her witnesses and

evidence showing the failure of service of process and the proper

forum. Crump v. Crump, 821 P.2d 1172 (Utah App. 1991).

The Order declaring jurisdiction in Oregon and dismissing the Utah divorce action was plain and manifest error. The Order

should be reversed, and the case should be remanded to the trial court with instructions to permit the Petitioner to present evidence upon the basis of jurisdiction set forth in the UCCJA.

THE FAILURE TO MAKE A RECORD OF THE CONVERSATION BE'lWEEN THE OREGON COURT AND THE UTAH COURT IS ERROR

On July 12, 1999, the Petitioner filed her Verified

Petition for Divorce in the Sixth Judicial District Court for

43 Sanpete County within the State of Utah, and the Respondent answered the petition requesting affirmative relief. No petition for divorce had been filed in the State of Oregon at the time. Addendum D.

On November 30, 1999, the Petitioner filed her Motion for

Declaration of Jurisdiction Pursuant to the Uniform Child Custody

Jurisdiction Act which was supported by her affidavit showing the best interest of the children, their home state, facts regarding emergency jurisdiction, failure of service of process, identifying witnesses, abuse by Ronald Thurston, the significant connections the children and parents have with the State of Utah, and substantial evidence concerning the children's present and future care, protection, training and personal relationships, and the convenience of forum. R. 41-80.

Sometime during late October or early November of 1999, the Oregon court in it's restraining order proceeding contacted the Utah Court. The Utah trial court unilaterally cancelled the trial date without explanation to Jennifer Thurston. There is nothing in the record indicating that this exparte conversation occurred, or when it occurred, or what was considered other than the trial court's declaration on December 10, 1999, that there had been such a conversation. Tr. pp. 5-10.

The Petitioner appeared at the hearing on the motion on

December 10, 1999, with her witnesses prepared to present evidence

44 of th·e question of juri-sdiction and the best interest of the children, their training, care, protection and the significant connections with Utah. The Respondent did not appear at the hearing but was represented by his counsel, Lawrence Hunt. No witnesses appeared at the hearing on behalf of the Respondent. No divorce proceeding had been filed, nor has been filed, in the State of Oregon. R. 85, 86-89. The Petitioner attempted to call witnesses. The trial

Court refused to permit evidence and declared that it had spoken with an officer of the Court of the State of Oregon and that jurisdiction had been determined to be in Oregon. Tr. pp. 5-10.

In State ex rel. D.S.K. v. Kasper, 792 P.2d 118 (UT App.

1990), this Court recognized the importance of at least a contemporaneous written record of the communication between two courts concerning the determination of jurisdiction by either court under the UCCJA. Id. at 127 n. 9. Without a record of the proceeding it is impossible for an appellate court to review the discussion between the Oregon court and the Utah court. The appellate court nor Jennifer Thurston know the factors, evidence and reasoning used by the two courts to make a jurisdictional determination. Briggs v. Holcqmb, 740 P.2d 281, 283 (UT App. 1987).

A verbatim record of the communication should have been made and Jennifer Thurston should have been permitted notice of the proceeding and been permitted to participate in the matter. Yost v.

45 Johnson, 591 A.2d 178 {De-l, 19.'H) . The scheduling and notice of a hearing between courts and parties is not burdensome. Jennifer Thurston was prejudiced by the denial of the opportunity to prove to either court that she had not been served with Mr. Thurston's Oregon petition and Restraining Order. She was prejudiced because she was denied the opportunity to offer evidence of the most convenient forum, the home state of the children, the best interest of the children, and the unclean hands of Mr.

Thurston. See, e.g., Holm v. Smilowitz, 840 P.2d 157 (UT App. 1992), quoting Wyatt v. Falhsing, 396 So.2d 1069 (Ala.Civ. App.

1981), finding a denial of due process because the mother was not given notice and an opportunity to be heard.

"Ordinarily, the record consists of a verbatim transcription or recording of the entire proceeding." Liska v. Liska, 902 P.2d 644 (UT App. 1995). See Utah Code Ann. Section 78-

56-1.1 (1992); Utah Code Jud. Admin. R3-304(3) (A).

It is impossible for an appellate court to review the action of the trial court, and the basis for conclusions as to which state has jurisdiction, the best interest of the children and which forum is most appropriate, without any record of the proceedings in the trial court. See Briggs y. Holcoffib, 740 P.2d

281, 283 (UT App. 1987).

In the instant action there is no indication in the record of when, or if, there was a conversation between an Oregon

46 judicial officer and the district court. Jennifer Thurson and the appellate court can only guess when the communication occured, what the substance of the communication was, and the factors relied upon by the trial court for making it's determination that Oregon is the more appropriate forum, and the basis for jurisdiction.

Jennifer Thurston and this appellate Court are prevented from determining and reviewing the facts and conclusions upon which the action transferring jurisdiction to Oregon was based.

The Order transferring jurisdiction to the State of Oregon and dismissing the Utah divorce action was manifest error.

The Order should be reversed, and the case should be remanded to the trial court with instructions to permit Jennifer Thurston to present testimony and evidence upon the basis of jurisdiction set forth in the UCCJA, that any communication between an Oregon judicial officer and the Utah court be upon the record, and that the Petitioner should have notice of the communication and be permitted to participate in the communication.

THE TRIAL COURT SHOULD HAVE MADE FDmiNGS OF FACT AND CONCLUSIONS OF LAW

The trial court should have made factual findings and conclusions of law upon the basis' of jurisdiction in the State of Utah in accordance with Utah Code Annotated, Section 78-45c-3, and the factors used in determining the most convenient forum, or declining jurisdiction on findings of inconvenient forum, pursuant

47 to Section 78-45c-7. The failure of the trial court to make such findings of fact and conclusions of law, and the dismissal of the divorce action is plain and manifest error. U.C.A. section 78- 45c-7(1), and (2), specifically provides that the trial court must make findings regarding the convenience of forum, and the most appropriate forum. Addendum C 2.

Moreover, under U.C.A. section 78-45c-7(3), in determining if it is an inconvenient forum, the court shall consider if it is in the interest of the children that another state assume jurisdiction, taking into account, inter alia, the home state of the children, the connection of another state with the children and their family and the contestants, whether substantial evidence concerning the children's present or future care, protection, training, and personal relationships is more readily available in another state, any agreement upon another forum which is no less appropriate, and whether the exercise of jurisdiction by the court of this state would contravene any of the purposes stated in U.C.A. section 78-45c-1. Jennifer Thurston objected that the trial court had failed to make findings of fact and conclusions of law regarding jurisdiction. R. 86-88.

The appellate court, without adequate findings of fact and conclusions of law, has no ability to review the basis for the trial court to find that Utah was without jurisdiction, that Oregon had jurisdicition, and the factors used in determining the most

48 convenient forum.

The only evidence before the trial court on December 10, 1999, was that of Jennifer Thurston. In Kelly v. Draney, 754 P.2d 92 (UT App. 1988), this Court quoted the Utah Supreme Court in Acton v. Deliran, 737 P.2d 396 (Utah 1987), when it stated,

"Failure of the trial court to make findings on all material issues

is reversible error unless the facts in the record are 'clear,

uncontroverted, and capable of supporting only a finding in favor

of the judgment.' [Such findings] 'should be sufficiently detiled

and include enough subsidiary facts to disclose the steps by which

the ultimate conclusion on each factual issue was reached.'" See

also, Kinkella v. Baugh, 660 P.2d 233 (Utah 1983) requiring reversal and remand.

The failure of the trial court to make findings of fact and conclusions of law supporting it's judgment was plain, manifest

and reversible error. This action should be remanded to the trial

court with instructions to enter findings of fact and conclusions

of law, based upon the affidavit of Jennifer Thurston, and judgment that the State of Utah has jurisdiction upon said facts.

CONCLUSION

The Oregon court was without jurisdiction to enter a

permanent custody order. Utah has jurisdiction pursuant to the

UCCJA, 78-45c-1, et seq. Jennifer Thurston should be permitted to

present evidence. Any communication between the Oregon Court and

49 the Utah court should bPr upon the record and notice and opportunity to be heard provided Jennifer Thurston. The trial court should make findings of fact and conclusions of law upon the facts and issues required under the UCCJA. This matter should be reversed

eptember, 2000.

t, ston

I hereby certify that on this 21st day of September, 2000, I served upon and mailed, postag two (2), true and correct c Appellant to Ronald Thurston, at 97303.

50 ADDENDUM

A. Order declaring Oregon's jurisdiction on February 22, 1999.

B. Transcript of hearing on jurisdiction on December 10, 1999.

C. 1. Oregon UCCJA, ORS 109.701 et seq. 2. Utah UCCJA, U.C.A. 78-45c-3 et seq.

D. Ronald Thurston's Oregon Petition for Dissolution filed March 20, 2000, in Lincoln County Circuit Court, case number 001309, Return of Service by Kimberly Dunham of May 3, 2000. Minutes of June 5, 2000, hearing. LAWRENCE H. HUNT (3934) Attorney for Respondent 195 North 100 East, Suite 205 Richfield, Utah 84701 (435) 896-4424

IN THE SIXTH JUDICIAL DISTRICT COURT OF SANPETE COUNTY STATE OF UTAH

JENNIFER MELISSA THURSTON, ORDER Petitioner,

vs.

RONALD THURSTON, Civil No. 994600102

Respondent. JUDGE LOUIS G. TERVORT

The above-entitled matter having come on regularly for hearing on the 1Oth day of December, 1999, upon the Motion of the Petitioner seeking a declaration of jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act. The Petitioner appearing in person and being represented by her attorney, Andrew B. Berry, Jr., and the Respondent appearing in person and being represented by his attorney, Lawrence H. Hunt. The court having heard argument by counsel for the parties, having had conversation with the Court in the State of Oregon, and the above-entitled Court being fully advised in the premises, now makes the following Order: Thurston vs. Thurston Order Civil No. 994600102 Page2

NOW, THEREFORE, IT IS ORDERED: 1. The State of Oregon has jurisdiction over this matter and all issues therein. 2. The Court hereby dismisses all matters concerning the above-entitled action. DATED this I 5{ day of February, 2000.

BY THE COURT:

District Court Judge CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing ORDER mailed to the following, postage prepaid, this !:\:l:h day of February, 2000.

Andrew B. Berry Attorney at Law 62 West Main Street P.O. Box 600 Moroni, Utah 84646-0600

NOTICE The above referenced parties will PLEASE TAKE NOTICE that, pursuant to Rule 4- 504 of the Utah Rules of Judicial Administration, the undersigned will submit the foregoing to the Judge of the Sixth Judicial District Court of Sanpete County for signature upon the expiration of five (5) days from the date of mailing of this Notice unless a written objection is filed with the Court and Counsel for the Respondent prior to that time. Please govern yourself accordingly. UHiuiNAL

IN THE sixTH JUDICIAL oisTRic;r0 S~!r!G Afl1 9 57 IN AND FOR SANPETE COUNTY, STATE OF UTAH KR15 ~. ..Lri:·~-

r• .-r"'! !-•J JENNIFER MELISSA THURSTON, ) BY.J~ ·... - ·.J'' ) Petitioner, ) ) vs. ) CASE NO. 994600102 DA ) RONALD THURSTON, ) ) Respondent, ) ______)

BEFORE THE HONORABLE LOUIS G. TERVORT

SIXTH JUDICIAL DISTRICT COURT

SANPETE COUNTY COURTHOUSE

MANTI, UTAH 84642

REPORTER' S TRANSCRIPT OF PROCEEDINGS

DECEMBER 10, 1999 FILED

TRANSCRIBED BY: Joseph M. Liddell, 1 APPEARANCES

3 FOR THE PLAINTIFF:

4 ANDREWBERRY ATTORNEY AT LAW 5 P.O. Box 600 Moroni, UT 84646 6

7 FOR THE DEFENDANT:

8 LAWRENCE H. HUNT 9 ATTORNEY AT LAW 195 North 100 East 10 Richfield, UT 84701

12 --ooOoo--

25 1 INDEX

2 PAGE NO.

4 TRANSCRIPT OF PROCEEDINGS ...... •...•...•...... 4 COURT RULING ...... •...... •...... •.•...... 9 5 DOCUMENT NUMBER/WORD INDEX ..•...... ••...... 12

6 --ooOoo--

25 1 10:00 A.M. lOTH DECEMBER 1999 2 TRANSCRIPT OF PROCEEDINGS

3 MR. HUNT: The only--I'm on the Thurston matter,

4 too, Your Honor.

5 THE COURT: Oh, good. Stay here.

6 MR. HUNT: (Inaudible) .

7 THE COURT: Let's take that up right now,--

8 MR. HUNT: Okay,

9 THE COURT: --if you have no objection.

10 MR. HUNT: (Inaudible)--Andrew Berry.

11 THE COURT: Mr. Berry. Is he still involved in

12 that?

13 MR. HUNT: Ah, the last I heard.

14 THE COURT: He indicated you were in it.

15 MR. HUNT: I haven't got an appearance filed yet. I

16 just recently got--(Inaudible).

17 THE COURT: I thought we had an order out of Oregon

18 that they have jurisdiction in this matter.

19 MR. HUNT: You do. There is.

20 THE COURT: So why are we here?

21 MR. HUNT: An interesting question. I didn't

22 schedule the hearing, Judge.

23 THE COURT: You--ha-ha, ha-ha, ha.

24 MR. HUNT: You know me. I'm always innocent. Just

25 ask me. It's never my fault. "Honest, Dear. " Ha-ha, ha-ha, 1 ha.

2 (Mr. Berry entered courtroom.)

3 THE COURT: Mr. Be~ry, are you involved in the

4 Thurston matter any longer?

5 MR. BERRY: Oh, of course.

6 THE COURT: Okay. Oh, you represent Melissa.

7 That's right. And you represent--

8 MR. HUNT: Ron Thurston.

9 THE COURT: Ron Thurston. Okay. Let's hear that.

10 Mr. Berry, !--there's an order out of Oregon from

11 the Judge there that that court has jurisdiction under the

12 Uniform Child Custody Act, I guess it is.

13 MR. BERRY: We--we--I haven't seen any order to that

14 effect at all. She hasn't been served that order; And of

15 course, under the UCCJA we're entitled to present evidence as

16 to the jurisdictional questions and the best interests of the

17 children and the home state of the children.

18 I--I understand that the court--and I do have

19 witnesses present--that I--I don't know that today's to do

20 it--the day to do it, given your calendar.

21 THE COURT: I don't think it is.

22 MR. BERRY: We have several witnesses and they have

23 a lot of evidence that we'd like to present on the

24 jurisdictional question. The court should consider the best

25 interests of the children and, of course, where the case was 1 filed and where these folks have lived. These children have

2 lived in Utah--

3 THE COURT: I tho~ght that had already been

4 determined in Oregon.

5 MR. HUNT: I think that--that hearing should have

6 taken place, if it didn't take place in Oregon; not here.

7 MR. BERRY: We've never been served anything about a

8 hearing in Oregon.

9 THE COURT: Well I don't know what you may have been

10 served, but I have been in contact with the Judge ln Oregon by

11 phone and after due conversation with him we came to the

12 conclusion that the appropriate jurisdiction and determination

13 of jurisdiction should be made in the state of Oregon. And he

14 was going to prepare an order to that effect.

15 MR. HUNT: He did.

16 MR. BERRY: Well I--I haven't seen any order to that

17 effect.

18 THE COURT: What do you have there, Mr. Hunt?

19 MR. HUNT:· Just if I may approach Your Honor. Let

20 me check. I may have an extra copy.

21 MR. BERRY: Do you have a copy?

22 MR. HUNT: I just assumed you had one. I don't

23 think I have an extra copy.

24 THE COURT: Well that appears to be an order of

25 consolidation. 1 MR. HUNT: As well as jurisdiction.

2 THE COURT: Correct.

3 MR. BERRY: Urn, then I--I think that we're entitled 4 to have our case heard and present evidence as to the

5 jurisdictional question. There's no domestic proceedings.

6 THE COURT: Suppose I did that and Oregon did that 7 and we have--and both come to different conclusions.

8 MR. BERRY: Well if Oregon declared itself the

9 jurisdiction. I mean we haven't even--we haven't even been

10 able to present evidence in Oregon. She hasn't been served

11 with any documents or motions at all out of Oregon or at least

12 entitled to be heard. 13 THE COURT: I understand, Mr. Berry. But I have

14 conferred with Judge Bennett in Oregon and he I talked about

15 it and we carne to agreement and from what we could see that

16 the jurisdiction would best be determined in Oregon and that's

17 the ruling of this court.

18 (Whereupon Bench phone rang.)

19 THE COURT: Hello. No, it is not.

20 (Court hung up Bench phone.)

21 MR. BERRY: Urn, the--also, Your Honor, the statute

22 requires that that conversation with Judge Bennett in Oregon

23 be, ah, a record be made of that conversation and for this

24 court--

25 THE COURT: You'll have to check with Judge Bennett 1 on that. 2 MR. BERRY: And this--this court makes specific

3 findings as to the facts that's supporting jurisdiction one

4 way or the other. There's no divorce proceeding pending in

5 Oregon whatsoever. The first time the issue was raised was by

6 me and that's with this motion. And these children have lived

7 in Utah. In two weeks it will be a year. And so at the time

8 we filed this--

9 THE COURT: The matter was filed up there in June,

10 wasn't it? Or--

11 MR. BERRY: A protective order proceeding was filed

12 up there by Mrs. Thurston in June. That was after this court·

13 had taken jurisdiction in March several months on a protective

14 order proceeding. And then we had several--(Inaudible)--

15 THE COURT: But you didn't have a year of

16 jurisdiction at that point. The children hadn't been there

17 and that was the basis of ruling--of my coming to the

18 conclusion with Judge Bennett that that was the appropriate

19 place for it to be--for it to be in Oregon was the fact that

20 at the time that hearing was scheduled and at the time it was

21 filed and heard here in Sanpete the children had not been here

22 in six months.

23 MR. BERRY: In March, you're saying.

24 THE COURT: Yes.

25 MR. BERRY: And I think that that's true. But one 1 of the bases of jurisdiction under the UCCJA is that a risk of

2 injury to the children. And this court had issued a

3 protective order based upon ·physical abuse by Mr. Thurston

4 that occurred here in March.

5 COURT RULING

6 THE COURT: Well, Mr. Berry, this is the ruling.

7 I've given the jurisdiction to Oregon. If you don't think

8 that's appropriate, you can appeal my decision. But I am

9 through with it here until somebody does something in Oregon

10 to get it back here in my hands.

11 MR. BERRY: Okay.

12 THE COURT: That's the ruling.

13 MR. BERRY: And so I take it that Mr. Hunt will

14 prepare an order to that effect.

15 THE COURT: I assume he will, if he's doing his job.

16 MR. BERRY: And then may I approach the court at

17 that time to request under Rule 62 a stay of that order

18 pending--

19 THE COURT: You can follow the rules and make your

20 application and we'll go from there.

21 MR. BERRY: Thank you, Your Honor:

22 THE COURT: Okay.

23 MR. BERRY: Urn, so, ah, we've--we won't be permitted

24 to present witnesses on the question today?

25 THE COURT: Not today, no. You said you weren't 1 ready anyway.

2 MR. BERRY: Well I--

3 THE COURT: I meaTh you didn't think we were gonna

4 get to it.

5 MR. BERRY: We have the witnesses here and all,

6 but--

7 THE COURT: No. I'm not gonna hear any evidence on

8 it.

9 MR. BERRY: All right. Thank you, Your Honor.

10 THE COURT: Thank you.

11 (The above entitled proceedings were completed.)

12 --ooOoo-- 13

25 1 STATE OF UTAH ) ) ss. 2 COUNTY OF SANPETE )

3 REPORTER'S CERTIFICATE

4 I, JOSEPH M. LIDDELL, RPR, CSR, Official Reporter

5 for the Sixth Judicial District Court, County of Sanpete,

6 State of Utah, hereby certify the following:

7 That I was NOT present at the foregoing court

8 proceedings; that the foregoing record was preserved by

9 videotape; that thereafter I stenographically recorded the

10 requested portion of the video and translated the same using

11 computer-aided transcription with a proofreading against the

12 video; that the foregoing pages, numbered 1 to 10 inclusive,

13 constitute to the best of my ability a true, correct and

14 complete transcript of the above entitled proceedings.

15 I further certify that I am not an agent, attorney

16 or counsel for any of the parties hereto, nor am I

17 interested in the outcome thereof.

18 IN WITNESS WHEREOF I have subscribed my name this

19 23rd day of June, 2000.

20 21 J;itiM~trs(RPR 22 Notary Public in and for the State of Utah 23 [License No. 83-106769-7801]

24 My Commission Expires: 5-6-2002 25 --ooOoo-- 1 DOCUMENT NUMBER/WORD INDEX

2 Please note the following pages which contain both a

3 numeric and alphabetic index. of all numbers and words found

4 in the foregoing transcript. Each number or word contained

5 herein has, printed to the right of it, the locations where

6 it may be found in this transcript in a "page number/line

7 number" sequence (i.e. "8/15", as indicated in this index

8 after an entry, would mean "page 8, line 15").

9 --ooOoo--

25 F Q (Mr. Berry 512 fact 9 qu~tion 4121, 5124, 115, 9124 facts 813 qu~tions 5N6 1------~------t fault 4125 1 rued 4115, 611, 818, 819. 8111, 8121 1-,..,10,....:00~-.,...-~------...... --"""'--lindings 813 R folks 611 ~411 ~~ ~~ 1 _1999----4-/1------f------~------1record 7123 1- G represent 516, 5n 9N7 1-'~~------~6~------r;;.;~~~------~requ~t2 requir~ 7/22 62 9/17 risk 9N ~---~------}------=------J Ron 518, 519 A H Rule 9N7 ~~~~------_:~------h;:;;.;k~9iiit1iiio:------~ rul~ 9/19 A.M 4/1 have-and 1n ruling 7N7, 9/5, 9/6, 9N2 abuse 913 Hello 7119 ruling-of 8N7 Act 5112 home 5N7 agreement 7/15 Hon~t 4125 Andrew 4110 Honor 4/4, 6119, 7/21, 9/21 s appeal 9/8 appearance 4115 hung 7/20 schedule 4122 application 9/20 scheduled 8120 approach 6N9, 9N6 l------1 I Rrved 5N4,6n,6110,7NO appropriate 6112, 8118, 9/8 h----,---.,...~~~--~-~~--~-4sa 1122 1------"""""1 1-there's 5/10 state 5N7, 6113 B Inaudible 416, 4110, 4116, 8N4 statute 7/21 ~-~~------1indkated 4114 Stay 415, 9N7 supporting 813 bases 9N injury 9/2 buis 8N7 Innocent 4124 be-for 8119 issue 8/5 Bench 7N8, 7/20 issued 9/2 Bennett 7N4, 7122, 7125, 8N8 it-the 5120 Berry 4110

5120 came 6111, 7N5 cue 5125, 7/4 check 6120, 7125 Child 5112 chlldren 5N7, 5125, 611, 816, 8N6, 8121, 912 conclusion 6112, 8/18 conclusions 1n conferred 7N4 consolidation 6125 contact 6110 conversation 6111, 7122, 7123 copy 6120, 6121, 6123 Correct 712 matter 413, 4111, 5/4, ~ coune 5/5, 5N5, 5125 Melissa 5/6 COURT 415, 0, 419, 4111, 4114, 4117, 4120, months 8113, 1122 4123, 513, 516, 519, 5/11, 5121, 5124, 613, 619, 6118, motion 1/6 We-we-I 5113 6124, 712, 7/6, 7N3, 7N7, 7/19, 7120, 7124, 7125, motiou 7Nt weeks an 812,~,8112,8115,8124,912,9~,9/6,9N2,9N5, Mr. Berry 4111, 513, 5/5, 5NO, 5N3, 5122, 6n, witneaes 5/19, 517.2, 9124 9N6,9N9, 9122,9/25,10/3 6116, 6121, 713, 7/1, 7N3, 7121, 812, 8Nt, 1123, court-and 5N8 8125,916,9!11,9!13,9!16,9/21,9123, tOll courtroom 512 MR. HUNT 413, 416, 418, 4110, 4113, 4115, 4119, Custody 51t2 4121,4!24,511,615,6115,6111,6119,6122,7!1,9/13 year an, 1115 ~~------~-----4Mr.Th~n 9/3 You-ha-ha 4123 Mrs. Th~n 8N2

decision 9/1 objection declared 711 only-l'm 413 determination 6112 order 4117, !NO, 5N3, 5N4, 6114, 6116, 6124, determined 6/4, 7/16 1111,1114,9/3,9!14,9/17 divorce 114 Orecon 4117,5110,614,616,611,6110,6113,U6, docaments 7/11 111, 7/lo, 7/lt, 7!14, 7!16, 1122, 11s, 1119, 9n, 9/9 domestic 7/5

E 6117,9/14 9123 entered 512 phone 6111, 7111, 7120 entitled 5115, 713, 7/12 phJIIcal 9/3 even-we 719 place 6/6, 1119 evidence 5115, 5123, 7/4, 7/10 point 1116 prepare 6114, 9114 prtlellt-that 5N9 proc:eediq 114, 1111, 1114 PROCEEDINGS.. _.__ __ .__412, __ Us ._ RIGHTS AND RELATIONSHIPS OF PARENT AND CHILD 109.704

contract for these necessities due to per spect to a child. "Child custody ceived legal limitations affecting contracts determination" includes a permanent, tempo with minors. The purpose of this legislation rary, initial and modification order. "Child is to address those limitations. custody determination" -does not include an (2} For purposes of this section. "minor" order relating to child support or other mon means an unemancipated and unmarried per etary obligation of an individual. son who is living apart from the person's (4) "Child custody proceeding" means a parent, parents or legal guardian, and who is proceeding in which legal custody, physical either: custody, parenting time or visitation with fa) Sixteen or 17 years of age; respect to a child is an issue. "Child custody proceeding" includes a proceeding for di (b) Under 16 years of age and the parent vorce, separation, neglect, abuse, depend of a child or childr~n who are living in the ency, guardianship, paternity, termination of physical custody of the person; or parental rights and protection from domestic (c) Under 16 years of age, pregnant and violence in which the issue may appear. expecting the birth of a child who will be "Child custody proceeding" does not include living in the physical custody of the person. a proceeding involving juvenile delinquency, (3) Notwithstanding any other provision contractual emancipation or enforcement un of law, a minor may contract for the neces der ORS 109.774 to 109.827. sities. Df a residential dwelling unit and for (5) "Commencementn means the filing of utility services to that unit. Such a contract the first pleading in a proceeding. is binding upon the minor and cannot be (6) "Court" means an entity authorized voided ·or disatrrrmed by the minor based under the Jaw of a state. to establish, enforce upon the minor's age or status as a minor. or modify a child custody determination. t4J The consent of the parent or legal (7) "Home state" means the state in guardian of such minor shall not be neces· which a child lived with a parent or a person sary to contract for a residential dwelling. acting as · a parent for at least six consec unit or utility services to that unit. The par utive months immediately before the com ent or legal guardian of such minor shall not mencement of a child custody proceeding. In be liahle under a contract by that minor for the case of a child less than six months of a residential dwelling unit or for utility ser age, "home state" means the state in which vices to thnt unit unless the parent or. the child· lived from- birth with any of the guardian is a party to the minor's contract, persons mentioned. Any temporary absence or enters another contract, for the purpose of any of the mentioned persons is part of of acting- as- guazantm of the minor's debt: [1993 c.369 §29] the period. 109.700 [1973 c.375 §25; repealed by 1999 c.649 §55) (8) "Initial determination" means the first child custody determination concerning UNIFORM CHILD CUSTODY a particular child. JURISDICTION- ANU (9) "Issuing court" means the court that ENFORCEMENT ACT makes a child custody determination for (General-P1 owisions)- which enforcement is sought under ORS 109.701 to 109.834. 109.701 Short title. ORS 109.701 to (10) "Issuing state" means the state in 109.834- may be- cited as the- Uniform Child which a child custody determination is made. Custody Jurisdiction and Enforcement Act. [1999 e.649 §l} ( 11) "Modification" ·means a child cus Note: 109.701 to 109.834 were enacted into law by tody determination that changes, replaces, the Legislative Assembly but were not added to or made supersedes or is otherwise made after a pre a part of ORS chapter 109 or any series therein by leg viaus .. determination concerning the same islative action. See Preface to Oregon Revised Statutes child, whether or not itis made by the court for further explanation. that made the previous determination. l69;7M Deiarltions·fur·ORS 109".701 to (lZ) "Person" means an individual. cor 109.834. As used in ORS 109.701 to 109.834: poration, public corporation, business trust, (1} "Abandoned" means- left without pro estate, trust, partnership, limited liability vision for reasonable and necessary care or company, association, joint venture, govern supervision. ment or a governmental subdivision, agency (2) "Child" means an individual who has or instrumentality, or any other legal or not attained 18 years of age. commercial entity. (3) "Child custody determination" means (13) "Person acting as a parent" means a a jud~ent, decree or other order of a court person, other than a parent, who: providing for the legal custody, physical cus (a) Has physical custody of the child or tody, parenting time or visitation with re- has had physical custody for a period of six

Title 11 Page 99 (1999 Edition) 109.707 DOMESTIC RELATIONS

consecutive months, including any temporary (3) A court of this state need not apply absence, within one year immediately before ORS 109.701 to 109.834 if the child custody the commencement of a child custody pro law of a foreign country violates fundamental ceeding; and- principles of human rights. [1999 c.649 §51 (b) Has been awarded legal custody by a Note: See note Wlder 109.701. court or claiin£ a. right to legal .custody . Wl 109.717 Effect of ehild custody deter der the law of this state. mination. A child custody determination (14) "Physical custody" means the phys mo.dc by a court of this state that has juris ical care and supervision of a child. diction under ORS 109.701 to 109.834 binds (15) "State" means a state of the United all persons who have been served in accor States, the District of Columbia, Puerto Rico, dance with the laws of this state or notified the United States Virgin Islands or any ter in accordance with ORS 109.724 or who have ritory- or insulaz pyssession snbject ·to· the submitted to ·the juris(liction of the court, jurisdiction of the United States. and who have been given an opportunity to be heard. As to those persons, the determi (16.} "Tribe" mean& aa Indian tribe or nation is conciusive as to all decided issues band, or Alaskan Native village, that is re of law and fact except to the extent the de cognized by federal law or formally acknowl edged by a state. termination is modified. [1999 c.649 §61 (17) "Warrant" means an order issued by Note: See note under 109.701. a court authorizing.. law enforcement officers 109.'r.!n [ 1973 C-375 §§1..23; repealed by 1999 c.649 §55] to take physical custody of a child. (1999 c.649 109.721 Priority. If a question of exist- §21 ence or exercise of jurisdiction under ORS Note: See note under 109.701. 109.701 to 109.834 is raised in a child custody 109.707 Proceedings governed by other proceeding, the question, upon request of a law. ORS 109.701 to 109.834 do not govern a party, must be given priority on the calendar proceeding pertaining to the authorization of and handled expeditiously. [1999 e.649 §71 emergeru:y. medWal care fGr a child. [1999. di4S N&te: See Ilole- under 109.701. §3] Note: See note under 109.701. 109.724 Notice to persons outside state. (1) Notice required for the exercise of 109.710 [1973 c.375 §2; 1997 c.707 §23; repealed by 1999 c.649 §55] jurisdiction when a person is outside this state may be given in a manner prescribed ltl9;7U · Application- to Indian· tribes; by the law of this state for service of process (1) A child custody proceeding that pertains or by the law of the state in which the ser to an Indian child as defined in the Indian vice is· made. Notice JPUSt be given in a Child Welfare Act (25 U.S.C. 1901 et seq.), is manner reasonably calculated to give actual not subject to ORS 109.701 to 109.834 to the notice but may be by publication if other extent that the proceeding is governed by the · Indian Child Welfare Act. means are not effective. (2.) A. court of this state. shall treat a.. (2) Proof of service may be made in the tribe as if it were a state of the United manner prescribed by the law of this state States for the purpose of applying ORS or by the law of the state in which the ser I09.70T.to I09:m. vice is made; If serv:ice is made by mail, proof of service may be a receipt signed by (3) A child custody determination made the addressee or other evidence of delivery by a tribe under factual circumstances in to the addressee. substantial conformity with the jurisdictional standards of ORS 109.701 to 109.834 must be (3) Notice is not required for the exercise recognized and enforced under ORS 109.774 of jurisdiction with respect to a person who to 109.827. [1999 c.649 §4J submits to the jurisdiction of the court. [1999 Note! See note under 109.701. e.649 §81 109..714 International- applkation. of.. Note: See note under 109.701. ORS 109.701 to 109.834. (1) A court of this 109.727 Appearance and limited im· state shall treat a foreign coWttry as if it munity. (I) A party to a child custody pro were a state of the United States for the ceeding, including a modification proceeding, purpose of applying ORS 109.701 to 109.771. or a petitioner or respondent in a proceeding t2) Except- as- otherwise provided· in · sulr to enforce or register ~ child custody deter section (3> of this section, a child custody mination, is not subject. to personal jurisdic determination made in a foreign country un tion in this state for another proceeding or der factual circumstances in substantial con purpose solely by reason of having partic formity with the jurisdictional standards of ipated, or of having been physically present ORS 109.701 to 109.834 must be recognized for the purpose of participating, in the pro and enforced under ORS 109.774 to 109.827. ceeding.

Title 11 Page 100 (1999 Edition) RIGHTS AND RELATIONSHIPS OF PARENT AND CHILD 109.741

(2) A persGn who is subject to personal means or other electronic means before a jurisdiction in this state on a basis other designated court or at another location in than physical presence is not immune from that state. A court of this state shall coop service of process in this state. A party erate with courts of other states in designat present in this state who is subject to the ing an appropriate location for the deposition jurisdiction of another state is not immune or testimony. from service of process allowable under the (3) Documentary evidence transmitted laws of that state. from another state to a court of this state by (3) The immunity granted by subsection technological means that does not produce (1) of this section does not extend to civil an original writing may not be excluded from litigation based on acts unrelated to the par evidence on an objection based on the means ticipation in a proceeding under ORS 109.701 of transmission. [1999 c.649 §111 to 109.834 committed by an individual while Note: See note under 109.701. present in this state. [1999 c.649 §91 109.737 Cooperation between courts; Note: See note under 109.701. preservation of records. ( 1) A court of this 109.730 [1973 c.375 §3; repealed by 1999 c.649 §551 state may request the appropriate court of 109.731 Communication between another state to: courts. (1) A court of this state may com (a) Hold an evidentjary hearing; municate with a court in another state con (b) Order a person to produce or give ev cerning. a proceeding . arising under ORS idence pursuant to procedures of that state; 109.701 to 109.834. (c) Order that an evaluation be made (2) The court may allow the parties to with respect to the custody of a child in participate in the communication. If the par volved in a pending proceeding; ties are not able to participate in the com munication, they must be given the (d) Forward to the court of this state a opportunity to present facts and legal argu certified copy of the transcript of the record ments before a decision on jurisdiction is of the hearing, the evidence otherwise pre made. sented and any evaluation prepared in com pliance with the request; and (3) Communication between courts on schedules, calendars, court records and simi· (e) Order a party to a child custody pro lar matters may occur without informing the ceeding or any person having physical cus parties. A record. need . not be made of the tody of the child tri appear in the proceeding communication. with or without the child. (4) Except as otherwise provided in sub {2) Upon request of a court of another section (3) of this section, a record must be state, a court of this state may hold a hear made of a communication under this section. ing or enter an order described in subsection 'l'he parties must be- informed promptly of th~ (1) of this section. communication and granted access to the re~ (3) Travel and other necessary and rea cord. sonable expenses incurred under subsections (5) For the purposes of this section, "re (1) and (2) of this section may be assessed cord" means information that is inscribed on against the parties according to the law of a tangible medium or that is stored in an this state. electronic or other medium and is retrievable (4) A court of this· state shall preserve in· perceivable form. (1999 c-.649 §101 the pleadings, . orders, decrees, records of Note: See note under 109.701. hearings, evaluations and other pertinent re cords with respect to a child custody pro 100..734 ·Taking testimony · in another ceeding for the time required by the state. ( 1) In addition to other procedures retention schedule adopted under ORS 8.125 available to a party, a party to a child cus (11). The retention schedule shall require re· tody proceeding may offer testimony of wit tention at least until t.he child attains 18 nesses who are located in another state, years of age. Upon appropriate request by a including· testimony of the parties and the court or law enforceme11t official of another child, by deposition or other means allowable state, the court shall forward a certified copy in this state for testimony taken in another of those records. [1999 c.649 §121 state. The court on its own motion may order that the testimony of a person be taken in Note: See note under 109.701. anothe-r sta~ ·and may prescribe the manner 109.740 (1973 c.375 §4; repealed by 1999 c.649 §55] in which and the terms upon which the tes timony is taken. (Jurisdiction) (2) A court of this state may permit an 109.741 Initial child custody jurisdic· individual residing in another state to be de tion. ( 1) Except as otherwise provided in posed or to testify by telephone. audiovisual ORS 109.751, a court of this state has juris-

Title 11 Page 101 (1999 Edition) 109.744 DOMESTIC RELATIONS

diction to make an initial child custody de child's parents and any person acting as a termination only if: parent do not presently reside in this state. (a) This state is the home state of the (2) A court of this state that has made a child on the date of the commencement of child custody determination and does not the proceeding, or was the home state of the have exclusive, continuing jurisdiction under child within six months before the com this section may modify that determination meneement of ·~ proeeeding and the child only if the court has jurisdiction to make an is absent from this state but a parent or initial determination under ORS 109.741. person acting as a parent continues to live 11999 c.649 §14} in this state; Note: See note under 109.701. (b) A court of another state does not 109.747 Jurisdiction to modify deter· have jurisdiction under subsection (lXa) of mination. Except as otherwise provided in this section, or a court of the home state of ORS 109.751, a court of this state may not the·child hM declined to exercise· jurisdiction modify a child custody determination made on the ground that this state is the more by a court of another state unless a court of appropriate forum under ORS 109.761 or this state has jurisdiction to make an initial 109.764, and: detennination under ORS 109.741 ClXa) or (b) (A) The child and the child's parents, or and: the child and at least one parent or a person (1) The court of the other state deter acting as a parent, have a significant con mines that it no longer has exclusive, con ~tion with. this. state other than mere tinuing jurisdiction under ORS 109.744 or physical presence; and that a court of this state would be a more convenient forum under ORS 109.761; or (B) Substantial evidence ia available in this state concerning the child's care, pro (2) A court of this state or a court of the tection, training and personal relationships; other state determines that the child, the child's parents and any person acting as a (c) All courts having jurisdiction under parent do not presently reside in the other subsection (l){a) or (b) of this section have state. [1999 c.649 §15) declined t determination that is entitled to be enforced longel' available in this state concerning the under ORS 109.701 to 109.834, or a child child's care, protection, training and personal custody proceeding has been commenced in relationships; or a court of a state having jurisdiction undei:. (b) A court of this state or a court of ORS 109.741 to 109.747, any order issued by another state determines that the child, the a court of this state under this section must

Title 11- Page 102 · (1999 Edition) RIGHTS AND RELATIONSIDPS OF PARENT AND CHILD 109.761

specify in the order a period that the court 109.834, unless the proceeding has been ter considers adequate to allow the person se~k mi-nated or is stayed by the court of the ing an order to obtain an order from the other state because a court of this state is a state having jurisdiction under ORS 109.741 more convenient forum u,nder ORS 109.761. to 109.747. The order issued in this state re (2) Except as otherwise provided in ORS mains- irr effect until· an- order is- · obtained 109.751, a court of this state, before hearing from the other state within the period speci a child custody proceeding, shall examine the fied or the period expires. court documents and other information sup (4) A court of this state that has been plied by the parties under ORS 109.767. If the asked to make a child custody determination court determines that a child custody pro under this section, upon being informed that ceeding has been commenced in a court in a child custody proceeding has been com another state having jurisdiction substan menced in, or a child custody determination tially in accordance \\'11th ORS 109.701 to has been made by, a court of a state having 109.834, the court of this state shall stay its jurisdiction under ORS 109.741 to 109.747, prOceeding and communicate with the court shalt immediately communicate with the of the other state. If the court of the state other court. A court of this state that is ex having jurisdiction substantially in accor ercising jurisdiction under ORS 109.741 to dance with ORS 109.701 to 109.834 does not 109.747, upon being informed that a child determine that the court of this state is a custody proceeding has been commenced in, more appropriate forum, the court of this or a child custody determination has been state shall dismiss the J)roceeding. made by, a court of another state under a (3) In a proceeding to modify a child statute.. similar to this -section, shall imme- · custody determination, .a court of this state diately communicate with the court of that shall determine whether a proceeding to en state to rewlve the emergency, protect the force the determination has been commenced safety of the parties and the child and deter in another state. If a proceeding to enforce mine a period for the duration of the tempo a child custody determination has been com rary order.. £1999 c.~ §16J. menced in another state, the court may: Note: See note under 109.701. (a) Stay the proceeding for modification 109.'154 N&tiee-; ~- to be· pending the entry of an order of a court of heard; joinder. (1) Before a child custody the other state enforcing, staying, denying or determination is made under ORS 109.701 to dismissing the proceeding for enforcement; 109.834, notice and an opportunity to be (b) Enjoin the parties from continuing heard in accordance with the standards of with the proceeding for enforcement; or ORS 1()9;724 must be given to all persons· entitled to notice under the law of this state (c) Proceed with the modification under conditions it considers appropriate. [1999 c.649 as in child custody proceedings between res §18] idents of this state, any parent whose par ental rights have not been previously Note: See note under 109 701. terminated- and- any person having physical Hlt.780· [1973 e.375 §6; repealed by 1999 c.649 §55) custody of the child. 109.761 Inconvenient forum. (1) A court (2} ORS 169:70-l to·l00;-834 do-not govern ()f this state that· has j~sdiction under ORS the enforceability of a child custody determi 109.701 to 109.834 to make a child custody nation made without notice or an. apportu-. de~rmination may decline to exercise its ju nity to be heard. risdiction at any time if the court determines that it is an inconvenient forum under the (3) The obligation to join a party and the circumstances and that a court of another right to intervene as a party in a child cus· state is a more appropriate forum. The issue tody proceeding under ORS 109.701 to of inconvenient forum may be raised upon 109:8-34 are governed- by the law of this state the motion of a party, the court's own mo as in child custody proceedings between res tion or the request of another court. idents of this. state.. [1..999. c.649 U7J (2) Before determining whether a court Note: See note under 109.701. of this state is an inconvenient forum, the 109-.'15-7 Simulbmeous proeeedings. (1) cow:t shaH consider whqther it is appropriate Except as otherwise provided in ORS 109.751, for a court of another state to exercise ju a court of this state may not exercise its ju risdiction. For this purpose, the court shall risdiction under ORS 109.741 to 109.771 if, at allow the parties to submit information and the time of the commencement of the pro shall consider all relevant factors, including: ceeding, a proceeding concerning-the custody (a) Whether domestic violence has oc of the child has been commenced in a court curred and is likely to continue in the future of another state having jurisdiction substan and which state could. pest protect the par tially in conformity Y.ith ORS 109.701 to ties and the child;

Title n Page 103 (1999 Edition) 109.764 DOMESTIC RELATIONS

(b) The length of time the child has re a child custody proceeding is commenced in sided outside this state; a court having jurisdiction under ORS (c) The distance between the court in 109.741 to 109.747. this state and the court in the state that (3) If a court dismisses a petition or stays would assume jurisdiction; a proceeding because it declines to exerci~e (d) The relative financial circumstances its jurisdiction under subsection (1) of this of the parties; section, it shall assess against the party seeking to invoke its jurisdiction necessary (e) Any agreement of the parties as to and reasonable expenses including costs, which state should assume jurisdiction; communication expense~, attorney fees, in (f) The nature and location of the evi vestigative fees, expenses for witnesses, dence required to resolve the pending liti travel expenses and child care expenses dur· gation, including testimony of the child; ing the course of the proceeding unless the (g) The ability of the court of each state party from whom necessary and reasonable to .. d.ecide. tha issue expeditiously .. and the expenses are sought establishes that the as procedures necessary to present the evi sessment would he clearly inappropriate. dence; and The court may not assess fees, costs or ex penses against this state unless authorized (h) The familiarity of the court of each by law other than ORS 109.701 to 109.834. state with the facts and issues in the pending [1999 c.649 §20] litigation; Note: See note under 109.701. (3) If a court of this state determines that 109.767 Information to be submitted it is an inoonvenient forum and that a court to court. (1) In a child custody proceeding, of another state is a more appropriate forum, each party, in its first pleading or in an at it shall stay the proceedings upon condition tached affidavit, shall give information, if that a child custody proceeding be promptly reasonabl_r ascertainable, under oath as to commenced in another designated state and the child s present address or whereabouts, may im.pose any other condition . the court the places where the child has lived during considers just and proper. the last five years and the names and present (4) A court of this. state. may decline to addresses .(}[ th& per50Ils with whom the chlld exercise its jurisdiction under ORS 109.701 has lived during that period. The pleading or to 109.834 if a child custody determination is affidavit must state whether the party: inci den tat tu an ~u;tion for ·divorce or another (a) Has participated, as a party or wit proceeding while still retaining jurisdiction ness or in any other capacity, in any other over the divorce or other proceeding. [1999 c.649 §191 proceeding concerning- the custody of or par enting time or visitation with the child and, Note: See note Wlder 109.701. if so, identify the court. the case number and 109.764 Jurisdiction declined by reason the date of the child custody determination, of conduct. (1) Except as otherwise provided if any; in ORS 1~'751· or· 419B.l00, if a court of this (b) Knows of any proceeding that could state has jurisdiction under ORS 109.701 to affect the current proceeding, including pro 109.834 because a person seeking to invoke ceedings for enforcement and proceedings its jurisdiction has engaged in unjustifiable relating to domestic violence, protective or conduct to so invoke the jurisdiction, the ders, termination of parental rights and ll&Urt ·shall deelin~ ·t(t exercise its jurisdiction· adoptions and, if so, identify the court, the unless: case number and the nature of the proceed· (a) The. parents. and .all persons.at:ting &&· ing; and parents have acquiesced in the exercise of (c) Knows the names and addresses of jurisdiction; any person not a party t,o the proceeding who (b) A court of the state otherwise having has physical custody of the child or claims jurisdiction under ORS 109.741 to 109.747 rights of legal custody or physical custody of, determines· that this- state· is- a nrore appro or parenting time or visitation with, the priate forum under ORS 109.761; or child and, if so, the names and addresses of (c)· N(t eooft· of any other· state· would those persons. have jurisdiction under the criteria specified (2) If the information required by subsec in ORS 109.741 to 109.747. tion ( 1) of this section is not furnished, the (2) If a court of this state declines to ex court, upon motion of a party or its own ercise its jurisdiction under subsection (1) of motion, may stay the proceeding until the this section, it may fashion an appropriate information is furnished. remedy to ensure the safety of the child and (3) If the declaration as to any of the prevent a repetition .of. the. unjustifiable con ite.ms described in su~ction (1) of this sec duct, including staying the proceeding until tion is in the affirmative, the declarant shall

Title 11 Page 104 (1999 Edition) RIGHTS AND RELATIONSHIPS OF PARENT AND CHILD 109.784

give additional information under oath as re (Enforcement) quired by the court. The court may examine 109.774 Definitions for ORS 109.774 to the parties under oath as to details of the 109.827. As used in ORS 109.774 to 109.827: information furnished and other matters per tinent to the court's jurisdiction and the dis (1) "Petitioner" means a person who position of the case. seeks enforcement of an order for return of a child under the Hague Convention on the (4) Each party has a continuing duty to Civil Aspects of International Child inform the court of any proceeding in this or Abduction or enforcement of a child custody any other state that could affect the current determination. proceeding. (2) "Respondent" means a person against (5) If a party alleges in an affidavit or a whom a proceeding has been commenced for pleading under oath that the health, safety enforcement of an order for return of a child or liberty of a party or child would be jeop under the Hague Convention on the Civil ardized by disclosure of identifying informa Aspects of International Child Abduction or tion, the information must be sealed and may enforcement of a child custody determi not be disclosed to the other party or the nation. [1999 c.649 §23! public unless the court orders the disclosure to be made after a hearing in which the Note: See note under 109.701. court takes into consideration the health, 109.777 Enforcement under Hague safety or liberty of the party or child and Convention. Under ORS 109.774 to 109.827, determines that the disclosure is in the in a court of this state may also enforce an or· terest of justice. Costs incurred by the court der for the return of the child made under when. special n(}l;ice procedures are made the Hague Convention on the Civil Aspects necessary by the nondisclosure of identifying of International Child Abduction as if the information shall be paid by the parties as order were a child custody determination. deemed appropriate by the court. [1999 c.649 [1999 c.649 §241 §21] Note: See note under 109.701. N&&e: See not& Wlde£.1Q9.70.l. lf8780 [1973 t-37:> §6; :W81 c.6S7 §35; repealed by 109.770 [1973 c.375 §7; 1981 c.897 §34; repealed by 1999 c.649 §55]· 1999 c.649 §55 J 109.781 Duty to enforce. (1) A court of 109.771 Appearance of parties and this state shall recognize and enforce a child child. (1) In a child custody proceeding in custody determination of a court of another this state, the court may order a party to the state if the latter court exercised jurisdiction proceeding who is in this state to appear be in substantial conformity with ORS 109.701 fore the court in person with or without the to 109.834 or the ~mination was made child. The court may order any person who under factual circumstances meeting the ju is in this state and 'vho has physical custody risdictional standards of ORS 109.701 to or control of the child to appear in person 109.834 and the determination has not been with the child. modified in accordance 'with ORS 109.701 to 109.834. (2) If a party to a child custody proceed ing whose presence is desired by the court is (2) A court of this state may utilize any remedy available under other law of this outside this state, the court may order that state to enforce a child custody determi a notice given under ORS 109.724 include a nation made by a court· of another state. The statement directing the party to appear in remedies provided in ORS 109.774 to 109.827 person with or without the child and inform are cumulative and do- not affect the avail ing the party that failure to appear may re ability of other remedies to enforce a child sult in a decision adverse to the party. custody determination. (1999 c.649 §25] (3) The court may enter any orders nec Note: See note under 109.701. essary- to ensure· the- safety ofthe ·child and of any person ordered to appear under this 109.784 Temporary order for parenting time or visitation. In a child custody en section. forcement proceeding authorized by law: (4) If a party to a child custody proceed (1) A court of this state that does not ing who is outside this state is directed to have jurisdiction to nmdify a child custody appear under subsection (2) of this section determination may issue a temporary order or desires to appear personally before the enforcing: · - · court with or without the child, the court may require another party to pay reasonable (a) A parenting time or visitation sched and_ necessary. tra..:el and other. e.x.penses of ule made by a court of another state; or the party and the child so appearing. [1999 (b) The visitatidn or parenting time pro c.649 §22] visions of a child custody determination of Note: See note under 109.701. another state that permit visitation or par-

Tttle H Page 105 (1999 Edition) 109.787 DOMESTIC RELATIONS

enting time but do not provide for a specific (5) A person seeking to contest the va visitation or parenting time schedule. lidity of a registered order must request a (2) If a court of this state makes an order hearing within 21 days after service of the under subsection (l)(b) of this section, the notice. At that hearing, the court shall con· court shall specify in the order a period that firm the registered order unless the person it considers adequate to allow the petitioner contesting registration e_stablishes that: to obtain an order from a court having iu· (n) The issuing court did not have juris risdiction under the criteria specified in ORS diction under ORS 109.741 to 109.771; 109.741 to 109.771. The order remains in ef (b) The child custody determination fect until an order is obtained ·from the other sought to be registered has been vacated, court or the period expires. [1999 c.649 ~l stayed or modified by a court having juris Net.:- SH lll:lte under 109.701. diction to do so under ORS 109.741 to 109.787 Registration of child custody 109.771; or detennination; notice; hearing. (1) A child (c) The person contesting registration custody determination issued by a court of was entitled to notice, but notice was not another state may be registered in this state, given in accordance with the standards of with or without a· simtrltaneous request for ORS 109.724, in the proceedings before the enforcement, by sending to any circuit court court that issued the order for which regis· in.t.ha state: tration is sought. (a) A letter or .other document requesting (6) If a timely request for a hearing to registration; contest the validity of the registration is not (b) Two copies, including one certified made, the registration is confirmed as . a copy, of the determination sought to be reg matter of law and the person requesting reg istered .. and- a- statement undeP penalty of istration and all persons served must be no perjury that to the best of the knowledge and tified of the confirmation. belief of the ~rson seeking registration the {7) Confirmation of a registered order, order has not been modified; ana whether by operation of law or after notice {c) Except as otherwise provided in ORS and hearing, precludes further contest of the 109:767; tlie name and address of the person order with respect to any matter that could seeking registration and any parent or per have been asserted at the time of registra son acting as.. a.~.whn ~been awarded tion. [1999 c.649 §271 custody, parenting time or visitation in the Note: See note under 109.701. be child custody determination sought to 109.1!10 [1973 c.375 §9; 1997 c.707 §24; repealed by registered. 1999 c.649 §551 (2) On receipt of the documents required 109.791 Enforcement of reJistered de by_ mbsecticn- (1) of this· section, the regis termination. (1} A court of thiS state may tering court shall cause the determination to grant any relief normally available under- the be filed as a foreign judgment, together with law of this state to enforce a registered child one copy of any accompanying documents custody determination made by a court of and information, regardless of their form. another state. (3} The person seeking registration of a child custody determination shal1 serve no (2) A court of this state shaH recognize tire upon the persons named · undct subsec and enforce, but may not modify, except in tion (lXc) of this section notifying them of accordance with ORS 109.741 to 109.771, a the opportunity. to. contest. the. registration in registered child custody determination of a accordance with this section. court of another state; (1999 c.649 §281 Note; See note under 109.701. (4) The notice required by subsection (3) of this section must state that: 109.'194 "Simultaneous proceedings. If a (a) A registered determination is en proceeding for enforcement under ORS lorceabre as of the date of the registration· in 109.774 to 109.827 is .commenced in a court the same manner as a detennination issued of this state and the ootirt determines that a by a court ofthis state; proceeding to modify the determination is pending in a court of another state having (b) A hearing to contest the validity of jurisdiction to modify the determination un the registered determination must be re· der ORS 109.741 to 1Q9.771, the enforcing quested within 21 days after service of no court shall immediately communicate with tice; and the modifying court. The proceeding for en (c) Failure to contest the registration forcement continues unless the enforcing will result in confirmation of the child eus court, after consultation with the modifying tedy- determination and preclude further. con court, stays or dismisses the proceeding. [1999 test of that detennination with respect to c.649 §29l , any_ matter that could have been asserted. Note: See note under 109.701.

Title 11 Page 106 (1999 Edition) RIGHTS AND RELATIONSHIPS OF PARENT AND CHILD 109.804

109.797 Expedited enforcement of child termine whether further relief is appropriate, custody determination. (1) A petition un unless the respondent .. appears and estab der ORS 109.774 to 109.827 must be verified. lishes that: Certified copies of all orders sought to be (a) The child custody determination has enforced and of any order confirming regis not been registered and confirmed under tration must be attached to the petition. A ORS 109.787 and that: copy of a certified copy of an order may be attached instead of the original. (A) The issuing court did not have juris diction under ORS 109.741 to 109.771; (2) A petition for enforcement of a child custody determination must state: (B) The child custody determination for which enforcement is sought has been va (a) Whether the court that issued the de cated, stayed or modified by a court having termination identified the jurisdictional basis jurisdiction to do so under ORS 109.741 to it relied upon in exercising jurisdiction and, 109.771; or if so, what the basis was; (C) 'I'he respondent was entitled to no (b) Whether the deternnnation for which tice, but notice was not given in accordance enforcement is sought has been vacated, with the standards of ORS 109.724, in the stayed or modified by a court whose decision proceedings before the court that issued the must be enforced under ORS 109.701 to order for which enforcement is sought; or 109.834 and, if so, must identify the court, the ca&-e number and the nature -of the pro (b) The child custody determination for ceeding; which enforcement is sought was registered and confirmed under ORS 109.787, hut has (e) Whether any- prooeeding has been been vacated, stayed or modified by a court commenced that could affect the current of a state having jurisdiction to do so under proceeding, including proceedings relating to ORS 109.741 to 109.771. [t999 c.649 §30l domestic violence, protective orders, termi Note: See note. under 109.701. nation of parental rights and adoptions and, 109.800 [1973 c.375 §10; 1997 c.707 §25; repealed by if SG,- must identify. the court, the case num 1999 c.649 §55 I ber and the nature of the proceeding; 109.801 Service of petition and order. (d) The present physical address the of Except as otherwise provided in ORS 109.807, child and the respondent, if known; the petition and order for enforcement of a (e) Whether relief in addition to the im child custody determination must be served mediate physical custody of the child and at by the petitioner, by any method authorized torney fees is sought, including a request for for service of process within this state, upon assistance from law enforcement officials the respondent and any person who has and, if so, the relief sought; and physical custody of the child. [1999 c:.649 §311 (f) If the clllld eustody determination has No~e: See note under 109.701. been registered and confirmed under ORS 109.804 Immediate physical custody of 109.787, the date and place of registration. child allowed; exceptions; spousal privi (3) Upon the flling of a petition, the lege not allowed in certain proceedings. court shall issue an order directing the re (1) Unless the court issues a temporary spondent to appear in person with or without emergency order under ORS 109.751, upon a the child at a hearing and may enter any finding that a petitioner is entitled to imme order necessary to ensure the safety of the diate physical custody of the child under the parties and the child. If the court issues an controlling child custoqy determination, the order, the order shall be served in the man court shall order that the petitioner may ner the court determines · to be appropriate take immediate physical custody of the child under the circumstances of the case and may unless the respondent establishes that: include service by the sheriff. The person re (a) The child custody determination has questing the order shall pay the costs of ser not been registered and confirmed under vice. The court shall hold the hearing as ORS 109.787 and that: soon- as reasonably possib-le· and-shall expe dite the hearing if it finds an emergency is

Title 11 Page 107 (1999 Edition) 109.807 DOMESTIC RELATIONS

proceedings before the court that issued the it may authorize law enforcement officers to order. for .which enforcement is sought; or enter private propt!rtY to take physical cus (b) The child custody detennination for tody of the child. If required by exigent cir which enforcement is sought was registered cumstances of the case, the court may and confinned under ORS 109.787, but has authorize law enforcement officers to make been vacated, stayed or modified by a court a forcible entry at any hour. of a- sta-re- having jurisdiction to do so under (6) The court may impose conditions ORS 109.741 to 109.771. upon placement of a child to ensure the ap (2). The court shall award the fees, costs pearance of the child and the child's custo and expenses authorized under ORS 109.811, dian. {1999 e649 §331 may grant additional relief, including a re Note: See note under 109.70L quest for the assistance of law enforcement 109.810 11973 c.375 §11; repealed by 1999 c.649 §551 officials, and may set further hearings, if necessary,. to determine whether additional 109.811 Costs, fees and expenses. (1) relief is appropriate. The court shall award the prevailing party, including a state, necessary and reasonable (3) A privilege ag~nst disclosure of com expenses incurred by or on behalf Qf the munications between spouses and a defense party, including costs, communication ex of immunity based on the relationship of penses, attorney fees, investigative fees, ex husba:ml- and wife· or parent and ·child may penses for witnesses, travel expenses and not be invoked .in a proceeding under ORS child care expenses during the course of the 109.774 to 109.827. [1999 1:.649 §32] proceedings, unless the party from whom fees Note: See note under 109.701. or expenses are sought, establishes that the 109.807 Warrant to take phpical cus award would be clearly inappropriate. An tody of child. (1) Upon the filing of a peti award may be inappropriate if the award tion seeking enforcement of a child custody would cause the parent or child to seek pub determination, the- petitioner· may ·file ·a ven lic assistance. fied application for the issuance of a warrant (2) The court may not assess fees, costs to take physical custody of the child if the or expenses against a state unless authorized chffiJ is immediatefy likely to suffer serious by law other than ORS 109.701 to 109.834. physical harm or be removed from this state. (1999 !!.649 §34} (2) If tire court, upon- the· testimony of the Nete: See note under 109.701. petitioner or other witness, is satisfied that 109.814 Recoguition and enforcement. there is probable cause to believe that the A court of this state s~ll a:ccord full faith child is imminently likely to suffer serious and credit to an order issued by another physical hann or he removed from this state, state and consistent with ORS 109.701 to it may issue· a ·warnmt·tu ·take physical cus 109.834 that enforces a child custody deter tody of the child. The petition must be heard mination by a court of another state unless on the next j1,1dicial day after the warrant is the order has been vaatted, stayed or modi executed unless that date is impossible. In fied by a court having jurisdiction to do so that event, the court shall hold the hearing under ORS 109.741 to 109.771. ll999 c.649 §35] ctn · the fll'St judicial day possible: The· ap~li cation for the warrant must include the Note: See note under 109.701. statements required by ORS 109.797 (2). 109.817 Appeals. An appeal may be (3) A warrant to take physical custody taken from a final order in a proceeding un of a child must: der ORS 109.774 to 109.827 in accordance with ORS chapter 19. Unless the court en (a) Recite the facts upon which a con ters a temporary emergency order under ORS clusion of imminent serious physical harm or 109.751, the enforcing court may not stay an removal from the jurisdiction is based; . order enforcing a child custody determi- (b) Direct law enforcement officers to nation pending appeal. [1999 c.649 §361 take physical custody of. the. child . imme- . Note: See not!! W1der 109.701. diately; and 109.820 [1973 c.375 §12; repealed by 1999 c.649 §55] (c) Provide for the placement of the child pending final relief. 109.821 Role of district attorney. {1) In a case arising under ORS 109.701 to 109.834 (4) The respondent must be served with or involving the Hague Convention on the the petition, warrant and order immediately Civil Aspects of International Child after the child is taken into physkal custody. Abduction, the district attorney may take (5} A warrant to take physical custody any lawful action, including resort to a pro of a child is enforceable throughout this ceeding under ORS 109.774 to 109.827 or any state. If the court fmds on the basis of the other available civil proceeding, to locate a testimony of the petitioner or other witness child, obtain the return of a child or enforce that a less intrus1ve remedy is not effective, a child custody determination if there is:

Title 11 Page 108 (1999 Edition) RIGHTS AND RELATIONSHIPS OF PARENT AND CHILD 109.990

(a) An existing child custody determi Note: See note under 109.701. nation; 109.834 Severability clause. H any pro (b) A request to do so from a court in a vision of ORS 109.701 to 109.834 or its appli pending child custody proceeding; cation to any person or circumstance is held (c) A reasonable belief that a criminal invalid, the invalidity does not affect other statute· has been violated; or provisions or applications of ORS 109.701 to 109.834 that can be given effect without the (d) A reasonable belief that the child has invalid provision or application, and to this been wrongfully removed or retained in vio end the provisions of ORS 109.701 to 109.834 lation of the Hague Convention on the Civil are severable. (1999 e.649 §411 Aspects of International Child Abduction. Note: See note Wlder 109.701. (2) A district attorney acting under this Note: Section 42, chapter 649. Oreeon Laws 1999, section acts on behalf of the state to protect provides: the state•s interest in the enforcement of s.e. 42. A motion or other request for relief made ORS 109.701 to 109.834 and may not repre in a child custody proceeding or to enforce a child sent any party. [1999 c.649 §371 custody determination that was commenced before the etreWve date of this 1999 Act [October 23, 1999] is gov Note: See note under 109.701. erned by the law in effect at the time the motion or 109.824 Role of .law enforcement offi· other request was made. [1999 c.649 §42] cer. At the request of a district attorney 109.840 [1973 c.375 §14; repealed by 1999 c.649 §55] acting under ORS 109.821, a law enforcement 109.850 [1973 c.375 §15; i981 c.897 §36; repealed by officer may take any lawful action reason 1999 c.649 f.'i.'i] ably nece~ary to locate a child or a party 109.860 [1973 c.375 §16; repealed by 1999 c.649 §55] and assist a district attorney with responsi 109.870 [1973 c.375 §17; repealed by 1999 c.649 §55) bilities under ORS 109.821. [1999 c.649 §38J 109.880 L1973 e.375 §18; repealed by 1999 c.649 §55] Note: See note under 109.701. 109.880 [1973 c.375 §19; iepeaied. by 1999 c.649 §55] 109.827 Costs and expenses of district 109.900 [1973 c.375 §20; repealed by 1999 c.649 ~] attorney and law enforcement officers. If 109.910 [1973 c.3i5 §21; repealed by 1999 c.649 §55] the respondent is not the prevailing party, lOU'JO [1973 c.375 §22; repealed by 1999 c.649 §55) the court may assess against the respondent 109SJO [1973 c.3i5 §24; repealed by 1999 c.649 §55] all direct expenses and costs incurred by the district attorney and law enforcement offi PENALTY. cers under ORS 109.821 or 109.824. [1999 c.649 §39} 109.990 Penalty. (1) A person who vio lates ORS 109.311 (3) or who submits a false Note: See note under 109.701. statement under ORS 109.311 (1) commits a 109.83& £1M3 e.375 l13; repealed by 1999 c.64& i55J Class C felony. (2) A person \Vho violates any provision (Miscellaneous Prcvlisions) of ORS 109.311 (4) or 109.502 to 109.507 or 109.831 Application and construction. any rule adopted pursuant to ORS 109.506 In.. applying and construing ORS 109.701 to commits a Class A misdemeanor. [1985 e.403 §2 109.834, consideration must be given to the (4); 1993 c.717 §5; subsection (3) of 1993 Edition enacted need to promote uniformity of the law with as 1993 c.410 §9; 1995 c.79 §44; 1995 c.730 §4] respect to its- subject-mattPr ·among- states .Note: See note Wider 109.425. that enact it. [1999 e.649 §4DJ

Title 11 Page 109 (1999 Edition) UT ST § 78-45c-3, Bases of jurisdiction in this state Page 1

Utah Code § 78-4Sc-3

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHILD CUSTODY JURISDICTION

Current through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-3. Bases of jurisdiction in this state

( 1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met:

(a) this state:

(i) is the home state of the child at the time of commencement of the proceeding; or

(ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;

(b) it is in the best interest of the child that a court of this state assume jurisdiction because:

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this state; and

(ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

(c) the child is physically present in this state or this state is the most recent domicile of the mother prior to the birth of the child, and:

(i) the child has been abandoned; or

(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is o1herwise neglected or dependent; or

( d)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance wi1h Subsection (l)(a), (b), or (c), or ano1her state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child; and

(ii) it is in the best interest of the child that this court assume jurisdiction.

(2) Except under Subsections ( 1)(c) and (d), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination. Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-3, Bases of jurisdiction in this state Page 2

(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to detennine his custody. *24561

As last amended by Chapter 143, Laws ofUtah 1990.

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Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-4, Persons to be notified and heard Page 1

Utah Code § 78-45c-4

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHILD CUSTODY JURISDICTION

Cu"ent through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-4. Persons to be notified and heard

Before making a decree under this act, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this state, notice and opportunity to be heard shall be given pursuant to section 78-45c-5.

As enacted by Chapter 41, Laws ofUtah 1980.

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Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-5, Service of notice outside state--Proof of Page 1 service--Submission to jurisdiction

Utah Code § 78-45c-5

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHILD CUSTODY JURISDICTION

Current through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-5. Service of notice outside state-Proof of service--Submission to jurisdiction

(1) Notice required for the exercise of jurisdiction over a person outside this state shall be given in a manner reasonably calculated to give actual notice, and may be made in any of the following ways:

(a) By personal delivery outside this state in the manner prescribed for service of process within this state;

(b) In the manner prescribed by the law of the place in which the service is made for service of process in that place in an action in any of its courts of general jurisdiction;

(d) As directed by the court (including publication, if other means of notification are ineffective).

(2) Notice under this section shall be served, mailed, delivered, or last published at least 10 days before any hearing in this state.

(3) Proof of service outside this state may be made by affidavit of the individual who made the service, or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery to the addressee.

(4) Notice is not required if a person submits to the jurisdiction of the court.

As enacted by Chapter 41. Laws ofUtah 1980.

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Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-6, Proceedings pending elsewhere--Jurisdiction not Page 1 exercised--Inquiry to other state--Information exchange--Stay of proceeding on notice of another proceeding

Utah Code § 78-45c-6

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHILD CUSTODY JURISDICTION

Cu"ent through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-6. Proceedings pending elsewhere--Jurisdiction not exercised--Inquiry to other state- Information exchange--Stay of proceeding on notice of another proceeding

(1) A court of this state shall not exercise its jurisdiction under this act if at the time of f:tling the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

(2) Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under section 78-45c-10 and shall consult the child custody registry established under section 78-45c-16 concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.

(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 78-45c-19 through 78-45c-22. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

As enacted by Chapter 41, Laws ofUtah 1980.

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Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-7, Declining jurisdiction on finding of inconvenient Page 1 forum--Factors in determination--Communication with other court--Awarding costs

Utah Code § 78-45c-7

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHILD CUSTODY JURISDICTION

Current through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-7. Declining jurisdiction on finding of inconvenient forum-Factors in determination- Communication with other court--Awarding costs

( 1) A court which has jurisdiction under this act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it fmds that it is an inconvenient forum to make a custody determination under the circmnstances of the case and that a court of another state is a more appropriate forum.

(2) A finding of inconvenient forum may be made upon the court's own motion or upon motion of a party or a guardian ad litem or other representative of the child.

(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:

(a) If another state is or recently was the child's home state;

(b) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;

(c) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state;

(d) If the parties have agreed on another forum which is no less appropriate; and

(e) If the exercise ofjurisdiction by a court of this state would contravene any of the purposes stated in section 78-45c-1.

(4) Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption ofjurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.

(5) If the court fmds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum. Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-7, Declining jurisdiction on finding of inconvenient Page 2 forum--Factors in determination--Communication with other court--Awarding costs

*24566 (6) The court may decline to exercise its jurisdiction under this act if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.

(7) If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorney's fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.

(8) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.

(9) Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.

As enacted by Chapter 41, Laws ofUtah 1980.

Search this disc for cases citing this section.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-4Sc-8, Misconduct of petitioner as basis for refusing Page 1 jurisdiction--Notice to another jurisdiction--Ordering petitioner to appear in other court or to return child--Awarding costs Utah Code§ 78-45c-8

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM CHUD CUSTODY JURISDICTION

Current through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-8. Misconduct of petitioner as basis for refusing jurisdiction--Notice to another jurisdiction-Ordering petitioner to appear in other court or to return child--Awarding costs

(1) If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction for purposes of adjudication of custody if this is just and proper under the circumstances.

(2) Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.

(3) Where the court declines to exercise jurisdiction upon petition for an initial custody decree pursuant to Subsection ( 1), the court shall notify the parent or other appropriate person and the prosecuting attorney of the appropriate jurisdiction in the other state. If a request to that effect is received from the other state, the court shall order the petitioner to appear with the child in a custody proceeding instituted in the other state in accordance with Section 78-45c-20. If no such request is made within a reasonable time after such notification, the court may entertain a petition to determine custody by the petitioner if it has jurisdiction pursuantto Section 78-45c-3.

(4) Where the court refuses to assume jurisdiction to modify the custody decree of another state pursuant to Subsection (2) or pursuant to Section 78-45c-14, the court shall notify the person who has legal custody under the decree of the other state and the prosecuting attorney of the appropriate jurisdiction in the other state and may order the petitioner to return the child to the person who has legal custody. If it appears that the order will be ineffective and the legal custodian is ready to receive the child within a period of a few days, the court may place the child in a foster care home for such period, pending return of the child to the legal custodian. At the same time, the court shall advise the petitioner that any petition for modification of custody must be directed to the appropriate court of the other state which has continuing jurisdiction, or, in the event that that court declines jurisdiction, to a court in a state which has jurisdiction pursuant to Section 78-4Sc-3.

*24568 (5) In appropriate cases a court dismissing a petition under this section may charge the petitioner with necessary travel and other expenses, including attorney's fees and the cost of returning the child to another state.

Added by lAws 1980, c. 41. Amended by lAws 1995, c. 20, § 175, eff. May 1, 1995.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-8, Misconduct of petitioner as basis for refusing Page 2 jurisdiction--Notice to another jurisdiction--Ordering petitioner to appear in other court or to return child--Awarding costs Search this disc for cases citing this section.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works UT ST § 78-45c-12, Parties bound by custody decree--Conclusive unless modified Page 1 Utah Code§ 78-45c-12

WEST'S UTAH CODE TITLE 78. JUDICIAL CODE PART 2. CAPITAL SENTENCE CASES CHAPTER 45C. UNIFORM ClllLD CUSTODY JURISDICTION

Cu"ent through End of 1997 General and 1st and 2nd Sp. Sess.

§ 78-45c-12. Parties bound by custody decree--Conclusive unless modified

A custody decree rendered by a court of this state which had jurisdiction under section 78-45c-3, binds all parties who have been served in this state or notified in accordance with section 78-45c-5 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to these parties the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law, including the provisions of this act.

As enacted by Chapter 41, Laws ofUtah 1980.

Search this disc for cases citing this section.

Copyright (c) West Group 1997 No claim to original U.S. Govt. works CIRCUIT COURT OF THE STATE OF OREGON FOR LINCOLN COUNTY, 17TH JUDICIAL DISTRICT

P.O. Box 100 Newport, Oregon 97365 Telephone (541) 265-4236

I, THE ADMINISTRATOR OF THE CIRCUIT COURT, OF THE STATE OF OREGON FOR LINCOLN COUNTY, DO HEREBY CERTIFY THAT THE FOREGOING COPY OF CASE FILE 001309. HAS BEEN COMPARED BY ME WITH THE ORIGINAL AND THAT IT IS A CORRECT TRANSCRIPT THEREFROM, AND OF THE WHOLE OF SUCH ORIGINAL AS THE SAME APPEARS ON FILE OR OF RECORD IN MY OFFICE AND IN MY CUSTODY.

IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID COURT THIS 25TH DAY OF AUGUST, 2000.

BY\i.~CIRCUIT COURT RK. 1

2 CIRCUiT __ !:DISTRICT COURT 3 FILED . ~--- __ RECEIVED ____

4 r-~ ;\R 2 o 2000 5 6 7 IN THE CIRCUIT COURT OF THE STATE OF OREGON 8 FOR THE COUNTY OF LINCOLN 9 Department of Domestic Relations lO 11 RONALD THURSTON, ) ) Case No:t:Jtf!,<:J/Jt? 12 Petitioner, ) ) PETITION FOR DISSOLUTION 13 and ) OF MARRIAGE ) 14 JENNIFER THURSTON, ) ) 15 Respondent. ) ) 16

17 Petitioner alleges: 18 l. 19 The Petitioner and Respondent were married in Sanpete County, Utah on January 28, 20 1983 and have ever since been husband and wife.

21 2. 22 Irreconcilable differences between the parties have caused the irremediable breakdown 23 of their marriage.

24 /// 25 Ill

26 Ill

27 MARK G. OBERT 28 Page 1- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem, OR 97302 (503) 375-6278 1 3. 2 There are two other domestic relations suits involving dependents of this marriage is

3 pending in Lincoln County Courts. They are restraining order cases titled Jennifer Thurston vs

4 Ronald Thurston, Lincoln County Case Nq. 99-1560 and Ronald Thurston vs. Jennifer Thurston,

5 Lincoln County Case No. 99-1558. Both of these cases were consolidated by the court in an Order

6 dated November 12, 1999 which also gave custody of the parties minor children to the Petitioner

7 herein. A dissolution and child custody proceeding was filed in Sanpete County, Utah by the

8 Respondent. The Utah court dismissed the action on the basis that Oregon was the proper forum for

9 the determination of issues regarding the minor children. Finally there is a criminal case pending in

10 which the Respondent has been indicted for taking the children from the State of Oregon against the

11 Order of the court in the above listed Oregon cases.

12 4. 13 For more thansix(6) months prior to the filing ofthe Petition herein, Petitioner is now

14 and has been a continuous resident of the State of Oregon.

15 5.

16 The children bornofthismarriageare: MELISSA LEE THU~STON, born August

17 6, 1983, TRISCHA LEIGHANNE THURSTON, born July 16, 1985, and CHRISTOPHER

18 LYNDON THURSTON, born December 5, 1989. Respondent is not now pregnant.

19 (a) The addresses where the children have lived and the persons lived with during

20 the last two years are as follows:

21 1) Salem, Oregon, with Petitioner and Respondent from 1993 to 1998;

22 2) lO I Salishshan Dr., Glenden Beach, Oregon with Petitioner and

23 Respondent from 1998 through 1999;

24 3) Somewhere in Utah with Respondent from 1999 to present.

25 Lincoln County Oregon has jurisdiction of these children based upon the Court's 26 rulings in Lincoln County Case No. 99-1558 and 99-1560.

27 MARK G. OBERT 28 Page 2- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem. OR 97302 (b) Petitioner has participated as a party in the cases listed in 3 above regarding

2 ligation concerning the custody of the minor child in this or any other state. Petitioner knows of no

3 person not a party to the proceeding who has physical custody of the minor child or claims to have

4 custody or visitation rights with respect to ~he minor child.

5 6.

6 The other information required by ORS 107.085(3) is:

7 (a) Petitioner's residence or legal address is 5015 Dune Ct., Lincoln City, Oregon;

8 his date ofbirth is January 25, 1965; he is 34 years old; this is the first marriage of the

9 Petitioner.

10 (b) Respondent's residence or legal address is currently unknown, however it is

II thought she might be with her parents at 251 S. Main, Sterling Utah.; her age is 34

12 years old; her date of birth is August 9, 1966; her social security number is unknown;

13 this is the first marriage of the Respondent. Respondent's maiden n3me is Gibb.

14 7.

15 Petitioner is a fit and proper persons and should be awarded the care, custody and 16 control ofthe parties minor children. Respondent should be granted limited supervised visitation

17 with the minor children due to the risk of her leaving the state with the children and secrete the

18 children from the Petitioner.

19 8. 20 Respondent should be required to pay and Petitioner should have judgment against

21 Respondent for the support of the parties minor children, pursuant to the State of Oregon Child

22 Support Guidelines. Support should commence on the first day of the month following entry of the

23 Judgment ofDissolution and continue on the same day ofeach month thereafter until the minor child

24 cease to qualify as a "child attending school" as defined in ORS 107,198(4) or attains the age of18

25 years, whichever shall last occur. Support should be recalculated at that time in accordance with

26 then-existing statutory child support guidelines

27 MARK G. OBERT 28 Page3- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem, OR 97302 ten'!\ '1'"7c: L"'t"70 NOTICE

2 Oregon Law now requires that payment ofchild support under new or modified orders

3 be by income withholding, even ifno arrearage is owed. An exception to withholding may be granted

4 pursuant to ORS 25.317 if good cause is found to exist or the parties agree in writing to another

5 arrangement.

6 (a) Payments should be made through the Department of Human Resources, PO

7 Box 14506, Salem, Oregon, 97309. The Department of Human Resources

8 should provide collection, accounting, distribution and enforcement services

9 in accordance with the provisions ofORS 25.320;

10 (b) The party obligated to pay support should pay any service charges imposed

11 by the collecting agency.

12 9.

13 As additional support, Respondent should be required to:

14 (a) Pay one-half of all of the children's reasonably incurred medical, opticaL

15 hospitaL dental and orthodontic expenses which are not covered by insurance.

16 b) Maintain an insurance policy insuring his life in an ~ount not less than

17 $200,000.00, naming the minor child (or a trustee on their behalf), as

18 beneficiaries.

19 ( 1) The obligation to maintain insurance should continue so long as Respondents are required to pay child support as decreed by the court or an 20 arrearage exists for accrued but unpaid support;

21 (2) The following provisions relate to procedural aspects of the requirement to maintain insurance: 22 A) During the term of the obligation to maintain insurance 23 Respondents should furnish to Petitioners, upon request, a copy of the policy or evidence the proper life insurance is in 24 force with the appropriate bef!e~ciary designation in effect.

25 B) A constructive trust should be imposed over the proceeds of any insurance owned by Respondents at the time of 26 Respondents' death if Respondents fail to maintain insurance in said amount, or if said insurance is in force but another 27 MARK G. OBERT 28 Page 4- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at law 1740 Liberty St. SE Salem, OR 97302 (5031375~278 beneficiary is designated to receive said funds.

2 C) Respondents are prohibited from borrowing any monies from or against or in any way reducing the benefits of said policies. 3 D) Respondents should provide a certified copy of this order to 4 the appropriate life insurance company in accordance with the provisions ofORS 107.820(6), notify said company as to the 5 terms of this order regarding life insurance and instruct it to update its records to guarantee compliance herewith. 6 Respondents should provide Petitioners proof of compliance with this provision within 60 days of the date of this order. 7 8 10.

9 Each party should maintain the minor children of the parties on their medical, dental

10 and hospital insurance so long as said insurance is available through her place of employment at little

11 or no cost.

12 11.

13 The parties do not own real property.

14 12.

15 Petitioner and Respondent have previously divided their personal property and each

16 party should be awarded the property in their control as of the date of this petition free from any

17 claim of the other.

18 13.

19 Petitioner and Respondent should each be awarded the bank accounts, retirement

20 accounts and any other financial possessions in their name as ofthe date ofthis petition free from any

21 claim ofthe other.

22 14.

23 Respondent has incurred various doctor bills and she should be required to pay said

24 bills and hold Petitioner harmless therefrom . Each party should be awarded the remaining debts in

25 their name as of the date of this petition.

26 Ill

27 MARK G. OBERT 28 Page 5- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at law 1740 Liberty St. SE Salem, OR 97302 ( 503) 375-6278 1 15.

2 Respondent should be required to pay Petitioner's attorney's fees and costs incurred

3 herein ifthis matter is contested. Ifthe matter is not contested, each party should pay their respective

4 attorney fees. 5 16.

6 Each of the parties should pay the debt incurred by that party since their separation

7 on or about June 1999.

8 WHEREFORE, Petitioner prays for a Judgment:

9 1. Dissolving the marriage of the parties;

10 2. Granting relief in conformance with the allegations of this petition; and, II 3. Granting other appropriate equitable relief as this court finds just and proper.

12 DATED this~ day of March, 2000.

13 I4 9?;£CfPR 15 s G. OBERT, OSB NO. 96380 Attorney for Petitioner 16 Trial Attorney

19 STATEOFOREGON ) ) ss. 20 Cowtty ofMarion )

21 I, RONALD THURSTON, Petitioner herein, underpenaltyofperjury, swear that to ~: =•o~ny,=.ormation and belief, all the~dissolution of

25 Ill 26 Ill 27 MARK G. OBERT 28 Page 6- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem, OR 97302 (503) 375.{;278 CERTIFICATE OF RESIDENCY

2 ForthepurposeofORS 14.070 and UTCR8.010{1), I herebycertifythatl and/or the 3 Respondent currently reside in Lincoln County, where the foregoing Petition for Dissolution of Marriage is being filed. 4

5 6

7 SUBSCRIBED and SWORN to before me this 1J,_ day of March 2000.

8 OFFICIAL SEAL 9 MARK G. OBERT NOTARY PUBLIC - OREGON - COMMISSION NO. 057578 10 MY COMMISSION EXPIRES SEPT. 12, 2000 My Commission Expires cut~/ D;:> I 11 12 NOTICE TO PARTIES IN SUIT FOR MARRIAGE, 13 DISSOLUTION OR LEGAL SEPARATION

14 If you are a spouse who is covered as a dependent under a group health insurance policy, Oregonlaw(ORS 743.850 to 743.890) allows you to maintain health insurance coverage after 15 divorce or legal separation, when you might otherwise lose that coverage. You may continue coverage under the group policy or you may obtain coverage under an individual health insurance 16 policy. You may also maintain coverage for any dependent whose coverage otherwise would end because of the dissolution or legal separation. The following is a summary of the applicable laws: 17 I. Ifyou are a divorced or legally se.parated spouse and you are 55 years ofage 18 or older at the time ofthe dissolution or legal separation, you may continue coverage under the group policy: 19 a. Ifyou notify the group health insurance plan administrator in writing 20 of the legal separation or dissolution within 60 days of the legal separation or the entry of the Judgment and Decree; 21 b. Ifyou elect to continue the group coverage and you make the electric 22 on a form provided by the plan administrator; and, 23 c. If you pay the premium when due.

24 This provision applies only with respect to employers with 20 or more employees and group health insurance plans with 20 or more certificate holders. ThiS provision does not apply to 25 policies issued before September 27, 1987, but does apply to policies issued or renewed on or after September 27, 1987. 26 2. Ifyou are a divorced spouse who has not reached 55 years ofage at the time 27

MARK G. OBERT 28 Page 7- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem, OR 97302 (~0'1 \ '17~.J'.7"1R of dissolution, you may continue coverage under the group policy upon dissolution of the marriage ifyou request the insurer or the group policyholder in writing to continue coverage. You must make 2 the request not later than 10 days after the date that your coverage under the group policy as a qualified family member would end, or I 0 days after the date on which the employer or policyholder 3 gives notice ofthe right to continue coverage, whichever date is later; however, in any case you may not make the request later than the 31st day after your coverage as a qualified family member ends. 4 This provision: 5 a. Applies with respect to employers who are not required under federal 6 law to make continuation of coverage benefits available. 7 b. Applies with respect to employers with 20 or more employees and group health insurance plans with 20 or more certificate holders. 8 c. Does not apply to legally separated spouses. 9 3. Ifyou are a divorced or legally separated spouse, regardless of age, you may 10 obtain coverage under an individual health insurance policy by applying to the group insurer either within 31 days following the date on which the coverage under the group policy ends because you 11 are no longer a qualified family member or at any time while coverage under the group policy is continued as described in the paragraphs above. 12 This notice is intended to tell you that you may be able to continue your health 13 coverage after your divorce or separation and that your time for doing so is limited." However, this notice is not a complete statement of all Oregon laws that may apply to you. For more information, 14 you should call your health insurer, the plan administrator for your insurance coverage, the employer to whom your insurance is provided, or your attorney. 15

25 26

27 MARK G. OBERT 28 Page 8- PETITION FOR DISSOLUTION OF MARRIAGE Attorney at Law 1740 Liberty St. SE Salem, OR 97302 l'iOl\ '\'7<;.J;.nR IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF LINCOLN

Department of Domestic Relations

RONALD THURSTON, ) ) Case No: 001309 Petitioner, ) ) PROOF OF SERVICE and ) ) JENNIFER THURSTON, ) ) Respondent. )

STATEOFOREGON ) ) ss. County of Marion )

I HEREBY CERTIFY that I made service ofthe foregoing Petition for Disoslution, Motion for Temporary Relief and Show Cause, Order to Show Cause, Motion, Affidavit and Order for Temporary Custody and Order Granting Temporary Custody to the within named Respondent by delivering, or leaving a true copy of said documents, certified to be such by the attorney for the Respondent as follows:

PERSONAL SERVICE .15 \ S . By delivering such true copy to the Respondent personally and in person at ~I , m Ov\ \3 ' .S\-ex\ \ '3' Utah, on mAy 0 3 '2000, at q. ':lr o clock, ~.m.

PROOF OF SERVICE MARK G. OBERT Attorney at Law 1740 Liberty St. SE Salem, OR 97302 (503) 375-6278 SUBSTITUTED SERVICE

By delivering such true copy at Defendant's dwelling house or usual place of abode, to-wit: , to , who is a person over the age of 14 years and a member of the household of the Respondent, on ------' 2000, at o'clock, _.m.

OFFICE SERVICE

By delivering such true copy of the documents to , the person who is apparently in charge ofthe office which Defendant maintains for the conduct ofhis/her business at on , 2000, during normal working hours, at to wit: o'clock _.m.

DATED: ____ Signature

I further certify that I am a competent person 18 years of age or older and a resident of the state of service or the State of Oregon, and that I am not a party to nor an office, director or employee of, nor attorney for any party, corporate or otherwise; that the person, firm or corporation served by me is the identical person, firm or corporation named in he action.

Type or Print arne 2340 , 5til SJ-tYG ,'.:.cscf&e; Address 2?.3Q1 Phone:37/-/L55

PROOF OF SERVICE MARK G. OBERT Attorney at Law 1740 Liberty St. SE Salem, OR 97302 (503) 375-6278 JOURNAL ENTRY

DATE: June 5, 2000. t-ASE NO.: 001309 CASE CAPTION: Ronald Thurston vs. Jennifer Thurston

TYPE OF Hl ci\R!. t' Show Cause I Dissolution

JUDGL _ Charles P. Littlehales

COURT REPORTER: Robert Peterson CLERK: f:arol Ells

DISPOSITIOK

NOTES: IN THE COURT OF APPEALS OF THE STATE OF UTAH

CAROL LYNN ADAMSON,

l?etltione.L: aEd Appellee,

T£D JAY ADA.i'-1SON,

~- ---, .-1 : l ~ ~..--- ..!. Respondent '·""J,;_j_ J_j_GJ.;

BRIEF OF APPELLANT

APPEAL .~::·KOM JUuGMENT OF THE SECOND JUDICIAL DISTRICT OF DAVIS COUNTY, STATE OF UTAH THE HONORABLE JON M. MEMM:>TT

1366 East Murray-i-L;J..l <,j Salt Lake City, Utat

: 0 West 4 th Bountiful, Utah 84010 Attorney for Appellee F\LEO JUN 3 0 2000

-COURT OF APPEALS TN THE COURT OF APPEALS OF THE STATE OF UTAH

CAROL LYNN ADAMSON,

Petitioner and Appellee, Trial Court No. 924701125 Vs.

Respondent and Appellant.

BRIEF OF APPELLANT

Al?PEAL FROM JUDGMENT OF THE SECOND JUDICIAL DISTRICT COUR'l' OF DAVIS COUNTY, STATE OF UTAH THE HONORABLE JON M. MEMMOTT

Alan R. Stewart 1366 East Murray-Holladay Roctd Salt Lake City, Utah 84117 Attorney for Appellant

George K. Fadel 170 West 400 South Bountiful, Ut?.r <34010 Attorney for Appellee TABLE OF CONTENTS

TABLE OF CONTENTS 11

TABLE OF AUTHORITIES IV

JURISDICTIONAL STATEMENT 1

ISSUES PRESENTED FOR REVIEW 1

STANDARD OF REVIEW 1

DETERMINITIVE AUTHORITY 2

STATEMENT OF THE CASE 2

1. Nature of the Case 2

2. Course of the Proceedings 2

3. Disposition In Trial Court 2

STATEMENT OF FACTS 3

SUMMARYOFARGUMENT 5

POINT I

BASIS FOR REVIEW 6

POINT II

THE COURT HAS CONTINUING JURISDICTION TO MODIFY 7 PROVISIONS IN A DECREE OF DIVORCE REGARDING THE DIVISION OF PROPERTY

11 POINT III

THE BENEFITS THAT RESPONDENT IS CURRENL Y RECEIVING 9 ARE DISABILITY BENEFITS AND ARE NOT A MARITAL ASSET SUBJECT TO DISTRIBUTION IN THE DECREE OF DIVORCE

CONCLUSION 12

MAILING CERTIFICATE 12

ADDENDUM#!

iii TABLE OF AUTHORITIES

Allard v. Allard, 708 A 2d 554 (Rhode Island 1998)

Avallone v A1 . ,m,

Barber v. fumn:rC> 1rt:J. c.H..:rt., tJ 1 P.2d 248 (Ut. Ct. App. 1988) 1

Bonham v. Morgan, 788 P.2d 497 (Utah 1989) 1

Freeman v. Freeman, 468 So.2d 326 (Fla. 1985) 9

7 ln Re Haag, 857 P. 2d 208 ~Ur.:;. lYY.J 1 9

In Re Marriage ofStenquist, 5 82 P.2d 96 (Ca l 0""R: 9

','\ ,; 099) 9

Land v. Land, 605 P.2d 1248 (Utah 1980) 8

'' 7

Queen v. Queen ': l .-\ ~·.d ·~ -;q Md. 1987) 9

Sundquzst v. Sundqw.· tah 1981) 7

Whitehoust: v. Whitehouse, 790 P.2d 57 (Utah Ct. App. 1990) I ' l)

Williams v. Sherwood, 688 P.2d 475 (Utah 1984) 7

IV B. STATUTES AND OTHER AUTHORITIES

Utah Rules of Civil Procedure, Rule 56 (c) 2

Utah Code Annotated§ 30-3-5 (c) 2,6

v Appellant, Ted Jay Adamson, p~rsua~t Rule 24 of the ~ta~

Rules of Appellate Procedure, submits this Appeal Brief.

JURISDICTIONAL STATEMENT

The Utah Court Of Appeals has jurisdiction pursuant to Utah

Code 'mnotat:eci § -7 t;-2a-~ \L:) 1h1. r1e o::::::-J.e:: appealed fran - -, f1nal order dlsposing of all claims of al~ ~art:1es.

ISSUES PRESENTED ON APPEAL

does not have jurisdiction and authority to modify the property awara in the partles' Decree of Dlvorce?

Did the trial court commit an error of law in failing to disti~ ish t~a~ the benefits Pespondent lS currentl\· receivinc

than retirement benefits awarded in the decree?

S~ANDARD OF APPELLATE REVIEW

Since a summary judgment is granted as a matter of law

conclusions for correctness and to determine whether there has

court"s legal cCJnclusior:s. Barber Farmers Ins. Exc::, """'t:

248 (Utah Ct App. 1988); Bonham v. Morgan, 788 P.2d 497 (Utah

1989)"

1 DETERMINATIVE AUTHORITY

The determinative statutory authority for this appeal is

Utah Code Annotated§ 30-3-5(3).

STATEMENT OF THE CASE

1. Nature of Case

This appeal is from a final order of the Second Judicial

District Court, Honorable Jon M. Memmott granting the

Petitioner's Motion For Summary Judgment on Respondent's Petition

To Modify Decree of Divorce.

2. Course of Proceedings

The parties were divorced by a Decree of Divorce entered by

the Second District Court on November 30, 1992. On January 29,

1998 Respondent filed a petition to modify the award of

retirement benefits based upon Respondent's severe disability

sustained subsequent to entry of the Decree of Divorce.

Petitioner filed a motion for summary judgment pursuant to Rule

56(c) of Utah Rules Of Civil Procedure.

3. Disposition in the Lower Court

The court granted Petitioner's motion for summary judgment,

ruling that, as a matter of law, Respondent was not entitled to modification of the Decree.

2 STATEMENT OF FACTS

entered by the Second District Court or: U vember 30, 19>:::. ~he

'-~~cree of Div :::e was based upon a Stinu1ation and Propertv

Settlement Agreement signed by the arties. (Paragraph

Statement of Fac~s of Respondent's Memorand~m In Opposi~io~ To

Mo .·. 1mmary JudgJ

-~~ the Decree the Petitioner was avJarded a one-half

(1/2) interest ~~Respondent's retirement benefits accrued d~~l-~

· · e marriage. h 2, Staterree ts of Respo "

Memorandur: 1 Opposition To Net Jon For Summar J;;dgment) .

3 . the time o· --·. :-ce, the Rec;;,::;r:dent was 42 years

old Cl.. ad worked as a licensed D1urnber. (Paragraoh j, Statement of

Fac~s of Respondent's Memorandum :n Opposition T Motion For

·mmary Judgn ·

4. At :.c t~me of the divorce, ·te Respondent did contemplate drawing on l. :e~lrement pension funa un~ll he rec:.i.;::eci at 6~~ years of aqe. (i?araqraph 4, Statement of Facts of

Respondent's emoranclu:r In Opposi t.::.on ~ ~· tion For Summary

.dgment)

5. On --'--i :.., 1995, Respondent, v:Ll.;.;:; ·,.,rorking, fe~.:.. :_w::;,

3 stories onto cement and sustained a serious spinal cord injury.

Respondent does not have the use of his legs and is confined to a wheel chair. The Respondent also has only limited use of his arms. The Respondent is no longer capable of employment and is no longer able to earn sufficient income to maintain his basic living expenses. (Paragraph 5, Statement of Facts of Respondent's

Memorandum In Opposition To Motion For Summary Judgment)

6. In February, 1996, as a result of his disability, the

Respondent qualified for early payments from his retirement and pension funds. He has been receiving $578.00 per month from the

Utah Pipe Trades Pension Trust Fund and $610.00 per month from the Plumbers & Pipefitters National Pension Fund. These payments will be made to the Respondent for the rest of his life. The

Respondent also is receiving Social Security disability payments.

(Paragraph 6, Statements of Facts of Respondent's Memorandum In

Opposition To Motion For Summary Judgment)

7. Had it not been for Respondent's unfortunate injuries, the Respondent would not have been eligible to receive retirement benefits from his retirement pension funds until he reached 62 years of age. (Paragraph 7, Statement of Facts, Respondent's

Memorandum In Opposition To Motion For Summary Judgment)

4 8. Prior to the accident, the Respondent was earning

$3,000.00 to $4,000.00 per month. (Paragraph 8, Statement of

Facts of Respondent's Memorandum In Opposition To Motion For

Summary Judgment) SUMMARY OF ARGUMENT

Summary Judgment should be granted only when the evidence, considered in a light most favorable to the non-moving party, demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. The lower court granted Petitioner's motion for summary judgment on the basis that, as a matter of law, it could not modify the property award to exclude Respondent's disability payments from distribution in the Decree of Divorce. Hence,

Respondent never even got to the question of whether there had been a change of circumstance since entry of the decree. The trial court simply ruled it did not have authority.

The applicable statute is clear that courts have continuing jurisdiction to make subsequent changes in divorce decrees for the distribution of property. Moreover, the benefits that the

Respondent is currently receiving are disability benefits and as such are not marital property subject to distribution in

5 the decree. It is submitted that the lower court erred in granting Petitioner's motion for summary judgment and that as a matter of law, the lower court has continuing jurisdiction to modify the Decree of Divorce as requested by the Respondent. As such the case should be remanded for a determination on the threshold question as to whether there has been a substantial and material change of circumstance.

ARGUMENT

POINT I

BASIS FOR REVIEW

Summary Judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Utah Rules of Civil Procedure, Rule 56(c). In the case at hand, the district court ruled that it did not, as a matter of law, have the authority to modify the property division in the decree, as requested by Respondent. The Respondent contends the district court does have continuing jurisdiction to modify property awards, to include the retirement annuity.

6 POINT II

THE COURT HAS CONTINUTNG JURISDICTION TO MODIFY PROVISIONS IN A

DECREE OF DIVORCE REGARDING DIVSION OF PROPERTY

Case law, as well as state statute authorizes a court to modify property distributions. Utah Code Ann. 30-3-5(3) provides as follows:

The Court has continuing jurisdiction to make subsequent changes or new orders for the custody of the children and their support, maintenance, health and dental care and for distribution of the property and obligations for debts as is reasonable and necessary. (emphasis added).

A trial court may modify the division of property in a stipulated divorce decree under a showing of a substantial change of circumstances since entry of the decree and not contemplated in the decree itself Hill v. Hill, 968 P.2d 866 (Utah Ct. App.

1988); Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct App

1990); Williams v. Sherwood, 688 P.2d 475, 476 (Utah 1984);

Sundquist v. Sundquist, 639 P.d 181 (Utah 1981) (reallocation of property rights in installment payments of income from real property) .

In McCrary v. McCrary, 599 P.2d 1248, 1250 (Utah 1979), the

Supreme Court stated the following

Under Utah law, a trial court granting a Decree of Divorce is afforded considerable discretion in the area of property distribution . . . the court has continuing jurisdiction over the parties with regard to the

7 decree, enabling it to make subsequent modifications as are equitable. The breadth of discretionary power given the trial court in the initial determination of the property division extends in equal measure to these subsequent modifications.

In other cases the Utah Supreme Court has stated that, while the court has continuing jurisdiction to modify property settlements, such should be resorted to with "great reluctance and for compelling reasons". Land v. Land 605 P.2d 1248, 1251

(Utah 1980); Whitehouse v. Whitehouse supra at 61.

In Whitehouse v. Whitehouse, the trial court modified the distribution of equity in the marital home and timing of pay out of a retirement program.

In the present case, at the time of entry of the decree, the parties were contemplating that Petitioner would begin receiving her share of Respondent's retirement benefits only when the

Respondent reached 62 years of age, the age when Respondent could begin receiving retirement benefits under his retirement plan.

The parties did not contemplate any other circumstance wherein

Respondent would begin receiving benefits from his retirement pension funds prior to Respondent reaching 62 years of age. The decree is silent on this issue. The Respondent's injuries subsequent to entry of the Decree were not contemplated by the decree. The Respondent's severe and debilitating injuries represent a substantial change in circumstances from the circumstances that existed at the time the decree was entered. In

8 addition, Respondent's injuries represent a compelling reason for the decree to be modified to provide for the circumstance that the parties now find themselves in.

POINT III

THE BENEFITS THAT THE RESPONDENT IS CURRENTLY RECEIVING ARE DISABILITY BENEFITS AND ARE NOT A MARTIAL ASSET SUBJECT TO EQUITABLE DISTRIBUTION IN THE DECREE OF DIVORCE

The appellate courts in many states have held that

disability payments, intended to compensate the employee for lost

earning capacity, are not marital property subject to equitable distribution between the parties in a divorce. Ciliberti v.

Ciliberti, 374 Pa.Super. 228, 542 A. 2d 580 (Pa.1988); Allard v.

Allard, 708 A. 2d 554 (Rhode Island 1998); In ReMarriage of

Stenquist, 21 Cal.3d 779, 148 Cal. Rptr, 9, 582 P.2d 96 (Ca.

1978); In Re Haag, 122 Or. App 230, 857 P. 2d 208(0re. 1993);

Queen v. Queen, 308 Md. 547, 521 A. 2d 370 (Md. 1987); Avallone

v. Avallone, 275 NJ Super.575, 646 A. 2d 112l(N.J.l994); Freeman

v. Freeman, 468 So.2d 326 (Fla.1985); Courts have been willing

to look behind the labels of "retirement benefits" and

"disability benefits" to determine the true nature of the benefits that are received by the recipient of the benefits.

Ciliberti v. Ciliberti, supra, Allard v. Allard, supra; Avallone

v. Avallone, supra. Retirement benefits are generally considered deferred compensation for past service, and are therefore

9 considered to be a marital asset subject to distribution upon dissolution of the marriage. Knies v. Knies, 979 P. 2d 482

(Washington 1999). In contrast, disability benefits compensate for lost earnings resulting from a diminished capacity to compete in the employment market. Allard v. Allard, supra. "Disability benefits may serve multiple purposes. They may compensate for the loss of earnings resulting from compelled premature retirement and from a diminished ability to compete in the employment market. Disability benefits may also serve to compensate the disabled person for personal suffering caused by the disability."

Ciliberti v. Ciliberti, supra, at 233, quoting In Re Marriage of

Stenquist supra, at 101.

As such, disability benefits are the injured party's sole property and are not subject to distribution upon the dissolution of the marriage.

Losses incurred after entry of final divorce, including future loss of wages, future medical expenses and future loss of earning capacity are the injured spouse's separate property and not subject to equitable distribution upon dissolution of the parties marriage.

Allard vs. Allard, supra.

In this matter, payments received by the Respondent are in lieu of earnings that would have been paid to him if he had been able to work. Therefore, the payments received by the

Respondent are disability payments, and as such are the

10 Respondent's separate property and are not subject to distribution to the Petitioner.

In Avallone, supra the husband had vested rights in a retirement pension, but had not completed the necessary years of service. Therefore, his right to receive the retirement pension had not matured. The husband was eligible for retirement benefits when he reached fifty five years of age, but was only forty four years of age when he became disabled. The court ruled that payments to the husband were disability benefits, and thus were not subject to division with the wife.

These facts are similar to the facts in this case.

Respondent would have been eligible to receive retirement benefits twenty years after the disability occurred. Therefore,

Respondent's rights to receive retirement benefits had not yet matured when the disability occurred. To allow the Petitioner to share in the Respondent's disability benefits provides an unexpected windfall for the Petitioner, and a financial hardship for the Respondent.

Respondent is not seeking to divest the Petitioner of her share in Respondent's actual retirement benefits. Respondent agrees that the Petitioner should share in the retirement benefits as contemplated by the Decree, i.e., when the

Respondent reaches 62 years of age, and would be eligible for retirement benefits according to the provisions of his

11 retirement plan.

CONCLUSION

The lower court erred in granting summary judgment to

Petitioner. As a matter of law, Respondent's disability

benefits are not a marital asset subject to distribution with

Petitioner. Th~refore Respondent is entitled to modify the

Decree of Divorce to exclude Respondent's disability benefits from distribution in the decree of divorce.

DATED this 2'1+~ day of June, 2000

Attorney for Appellant

CERTIFICATE OF MAILING

I hereby certify that the BRIEF OF APPELLANT was sent via

First Class U.S. Mail, postage prepaid, this ~9+?day of June,

2000 to the following counsel of record:

George K. Fadel 170 West 400 South Bountiful, Utah 84010 Attorney for Appellee

12 Addendum #1

Copy of Summary Judgment Order George K. Fadel i1027 .. 1 ...... Attorney for Plaintiff 170 weat 400 South Bountiful, Utah 84010 Telephone: 295-2421

IN THE SECOND DISTRICT COURT OF DAVIS COUNTY, STATE OF UTAH

CAROL LYNN ADAMSON, SUMMARY JUDGMENT DENYING Plaintiff, ) DEFENDANT'S MOTION TO MODIFY DECREE OF DIVORCE vs. )

TED JAY ADAMSON I Civil No. 9247001125 DA

Defendant. } Judge Jon M. Memmott ------~~-~------~~~------·-~-~------The hearing on Plaintiff's motion for summary judgment denying defendant's petition for modification of decree of divorce, came on before the Honorable Jon M. Memmott, District Judge, on Tuesday the 24th day of August, 1999. Plaintiff

appeared in person and by counsel, George K. Fadel. Defendant appeared in person and by counsel Alan R. Stewart. The Court having read the memoranda filed by the parties and hearing the arguments of counsel, and having heretofore made and entered Findings of Fact and Conclusions of Law, and it appearing that Summary Judgment should be entered pursuant to Rule 56, utah Rules of Civil Procedure, in that the pleadings, decree and other information contained in the record show that there is no genuine issue as to any material fact and the plaintiff is entitled to judgment as a matter of law, now therefor:

IT IS ORDBUD, ADJUDGED AND DECREED THAT:

1 1. The QUADRO as amended is res judicata as to the entitlement of the parties to retirement benefits of the defendant, and the Court is without jurisdiction to modify the QUADRO as to the plaintiff's entitlement pursuant to the Decree of Divorce entered in this cause. 2. Summary Judgment is hereby entered denying the defendant•s motion to modify the decree of divorce.

3 • No costs are awarded either party. Dated this24~day of September, 1999.

BY TBB COURT ~ -=r~ro. ro ~ DISTRICT JUDGE

2 CERTIFICATE OF MAILING

r certify that on the 26th day of Augustt 1999, I mailed a copy of the Findings and Judgment relating ~o the petition for modification of .the 'decree ·of divorce. to Mr. Alan R. Stewart, attorney for the defendant-respondent,l366 East Murray-Holladay Road, Salt Lake City, Utah 84117. /